' RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J.-To impeach for his alleged misconduct under the provisions of the Holders of Representative Offices (Disqualification) Ordinance, 1978 (hereinafter to be called as the Disqualification Ordinance), Sardar Muhammad Abdul Qayyum Khan, respondent to this appeal, a former President of the State of Azad' Jammu and Kashmir, was required to face varous charges under for references moved by the Chief Secretary of the Government before a Disqualification Tribunal. The Tribunal consisted of Sardar Vuhammad Sharif Khan, Judge of the High Court (as he then was) and Kh. Ghulam Qadir, Member Service Tribunal (now Registrar High Court). The former acted as its Chairman while the latter was its Member. The learned Tribunal, vide its order passed on 26th of September, 1979, returned a finding of innocence in favour of Sardar Muhammad Abdul Qayyum Khan as, according to the learned Tribunal, the Referring Authority failed to prove any of the charges.
2. On the pattern of Government of Pakistan, in 1978, it may be stated here, the Azad Jammu and Kashmir Government also embarked upon the process of calling upon the ex-legislators and such other politicians who occupied the seats of power since 1970 to account for the charges of misconduct. To achieve this end, the President promulgated an Ordinance on 13th March, 1978, known as the Holders of Representative Offices (Disqualification) Ordinance, 1978 (Ordinance No. IX of 1978). This Ordinance is being renewed every time after having run its normal course. The punishment that it provides for against a person guilty of misuse of office within the terms of Ordinance, is to debar him from holding, for seven years, any elective or selective office in the Legislature or the Azad Jammu and Kashmir Council and also from participating in any political activities, close door or otherwise, for the same period. The Ordinance also provides for setting up Tribunals to enquire into the charges of 'misconduct'. `Misconduct' is defined in section 2, subsection (h) of the Ordinance.
3. The cases which are to be enquired into by the Disqualification Tribunal and the requisite procedure to be followed at the initial stage are covered under section 4 of the Ordinance which reads :- "(1) A Disqualification Tribunal shall not proceed to enquire into any charge of misconduct against a holder of representative office except on a reference in writing made to it by the Chief Secretary or an Officer nominated, in this behalf, by the Chief. Executive.
(2) When the Chief Secretary or the Officer so nominated, on the basis of the material placed before him, decides to make a reference to the Disqualification Tribunal in respect of a holder of a representative office, the Chief Secretary or the officer, as the case may be, shall notify this fact in the official Gazette.
(3) On receiving a reference under subsection (1) the Disqualification Tribunal shall scrutinise the necessary records forwarded to it by the Chief Secretary or by the Officer, nominated in this behalf, relating to the charge mentioned in the reference.
(a) . . . .
(b) .
4. The above provisions would show that the Chief Secretary or the officer, as the case may when decides to make a reference to the Disqualification Tribunal, he shall notify this fact in the official Gazette. This procedure is mandatory and does not admit of any departure. This mean that a reference would be valid only in respect of those charges which are being notified in the official Gazette. Nothing beyond that can be legally taken up against a person proceeded against even if such a fact appears to be a misconduct as defined under section 2(h) of the Disqualification Ordinance and the evidence also supports such a fact. We have dealt with the scope of the reference because it has, as will be seen in the later part of the judgment, great relevancy to controversy.
5. Section 8 provides that proceedings before .a Disqualification Tribunal shall be deemed to be of civil nature and verdict of misconduct or B disqualification, emanating from such verdict, shall not be construed to mean a punishment or penalty of any offence.
' All the above provisions have been stated with some detail because without their true grasp, it would be difficult to understand the controversy.
6. As stipulated under the provisions of section 9 of the Disqualification Ordinance, this appeal is moved by the Referring Authority. It seeks the reversal of the said judgment of the Disqualification Tribunal regarding the following seven charges only :-
(1) That Sardar Muhammad Abdul Qayyum Khan as President of Azad Jummu & Kashmir State without authority and in disregard of prevalent rules and regulations, sanctioned a contract of sale of resin extracted from the Azad Kashmir Forests by the Forest Department, worth rupees one in favour of Azad Kashmir Rosin and Turpentine Mills Ltd. Owned by his personal friend, Ch. Muhammad Qasim Zafar and some others, on the basis of negotiations vide Order No. 792/75 dated 27-2-1975 and thus, the Government was deprived of the income amounting to millions of rupees.
(2) That as per Government Order No. 1816/19 dated 12-12-1974, Sardar Muhammad Abdul Qayyum Khan sanctioned a contract worth rupees one lac without inviting tenders, in respect of repairs and extension of Poonch House Rawalpindi in favour of his own favourite Muhammad Shafi Qadri against rules, regulations and procedure.
(3) That Sardar Muhammad Abdul Qayyum Khan, due to his personal and political interests, without any authority and justification, illegally ordered several disbursements of public (Government) moneys including a sum of rupees one lac which was paid to Captain (Retd.) Khan of Mong as a grant vide Government Order No. 502/5 dated 9-3-1974 ;
(4) That Sardar Muhammad Abdul Qayyum Khan, without any power and authority illegally spent an amount of Rs. 60,000 from the Government money and did not render any accounts thereof as required under law and as such he was guilty of wilful misapplication and diversion of public money and the abuse of power ;
(5) That Sardar Muhammad Abdul Qayyum Khan Ex-President drew and spent an amount of rupees sixty thousand as President from the `Discretionary Fund' during the financial year 1973-74 and he failed to render any account with regard to expenditure involving an amount of Rs. 10,350 which was illegally spent by him against rules and thereby committed acts of abuse of power, wilful misapplication and diversion of public (Government) money
(6) That Sardar Muhammad Abdul Qayyum Khan, Ex-President, drew two amounts of Rs. 25,000 each totalling Rs. 50,000 from the Government treasury and spent them illegally in 1974 during the Islamic Summit Conference convened at Lahore and failed to render complete accounts thereof as required by law (Rules). Moreover he made illegal payments of Rs, 5,000 to Mr. Manzar Masud the then Speaker and Rs. 1,000 to his Personal Assistant, Khan Muhammad Hussain Khan. He also spent Rs. 17,884.65 out of Rs. 50,000 for transport purposes although he and his staff were provided with transport facilities by the Azad Kashmir Government. Thus he was guilty of wilful misapplication and diversion of public money and abuse of power ; and
(7) That Sardar Muhammad Abdul Qayyum Khan drew an amount of: Rs. 8,000 from the Government treasury for convening 'All Pakistan Kashmir Conference' in 1973 and spent it without< any authority and illegally and also. Failed to render detailed accounts of the expenditure thereof according to rules. Thus he was guilty of abuse of power and wilful misapplication and diversion of public money.
7. Here in this Court following objections have been raised on behalf of the respondent :-
(1) That disqualification for public office is a punishment' therefore, the Disqualification Ordinance, being violate of Fundamental Right No. 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be called as the Constitution Act, 1974) (protection against retrospective punishment), is to be struck down ; (2)That the disqualification law (Ordinance) is violate of Fundamental Right No. 15 (equality before law) as it provides for discrimination between former holders of political offices on the one hand and the present Chief Executive and President on the other ; (3)That the reference is in violation of section 32 of Azad Jammu & Kashmir Government Act, 1970 and section 52 of the Constitution Act, 1974 ; (4)That the making of reference against the respondent was mala fide. It was a part of Government campaign for character assassination of politicians in general and the respondent in particular ; (5)That the Disqualification Ordinance is contrary to the Injunctions of Islam and is violative of section 31(5) of the Constitution Act, 1974, and as such it is a bad and void law ; and (6)That, on merits, the case does not stand established against the respondent.
8. When the case was taken up for arguments, Mr. Zafar, the learned counsel for the respondent, however, had restricted himself only to the following points of objections :-
(i) that the disqualification for the public office, now incorporated under the Disqualification Ordinance, is a 'punishment' and as such being violate of the Fundamental Right No. (4)(4)(a) of section 4 of the Constitution Act 1974 (protection against retrospective punishment) this Ordinance has to be struck down. It is also illegal and violative of subsections (6) and (9) of section. 4 of the Constitution Act, 1974, as it bars political activities after a person stands disqualified for bolding a public office ;
(ii) that the action sought to be taken against the respondent under the reference is in violation of section 52(5) of the Constitution Act, 1974, and section 32 of the Azad Jammu and Kashmir Government Act, 1970, in so far as both these provisions give protection for the acts and omissions for all times to the office holders mentioned therein and for that reason Sardar Muhammad Abdul Qayyum Khan, or his acts and omissions pertaining to the tenure of his office as President of Azad Jammu and Kashmir, cannot be proceeded against and stands fully protected under these provisions ; and
(iii) on merits, it is contended that there is no evidence to support either of the charges under appeal. It would be noticed that the two objections-(i) and (ii)-are purely legal while the third one deals with the merits of the case.
9. Ch. Fazal-i-Hussain, the learned counsel for the appellant, controverts the validity of all the points raised by Mr. Zafar, and submits- (a)that disqualification for `misconduct' incorporated in the Disqualification Ordinance is not a 'punishment' ; rather it is a civil disability not covered by the term 'punishment' ; (b)that section 52(5) of the Constitution Act, 1974, or section 32 of the Azad Jammu and Kashmir Government Act, 1970, does not provide any protection to the illegal or irregular acts or omissions of the President even during the period he is in office but he is positively answerable before the Court for his such actions when he ceases to hold the office ;
(c) that the Disqualification Ordinance is not violative of subsections (6) and (9) of section 4 of the Constitution Act, 1974, as the Legislature is competent to stop the political activities of the persons who stand disqualified under the Disqualification Ordinance ; and
(d) that the charges under appeal stand fully proved by the evidence and the learned Disqualification Tribunal fell in error to hold otherwise.
10. Before adverting to the merits of the case, we propose to dispose of the legal objections first.
11. In view of what have been stated during the course of arguments, at least for the limited purposes of or discussion, presently, the following premises are not in dispute-
(i) that the Disqualification Ordinance imposes a civil disability. In this connection paras. 802, 803 and 804 of Halsbury's Laws of England, Vol. 15, have been referred to by Ch. Fazal-i-Hussain, the learned counsel for the appellant. They read :- '802. Incapacity for re-election of candidate at parliamentary election.- A candidate at a parliamentary election who is reported by an election Court personally guilty of corrupt practice is incapable of being elected to and sitting in the House of Commons for the constituency for which the election was held, or any constituency which includes the whole or any part of the area of the first-mentioned constituency as constituted for the purposes of the election, for ten years from the date of the report. If the candidate is reported guilty by his agents of a corrupt practice, he is subject to the same incapacity for seven years. If the candidate is reported personally guilty of an illegal practice, he is subject to the same incapacity for seven years ; if the candidate is reported guilty by his agents of an illegal practice, he is subject to the same incapacity during the Parliament for which the election was held.
803. Incapacity for re-election of candidat at local Government election.- A candidate at an election under the Local Government Act, 1972 who is reported by an election Court personally guilty of a corrupt practice is incapable of holding any corporate office in the local government area for which the election was held, or in any local government area which includes the whole or any part of the area of the first-mentioned local government area as constituted for the purposes of the election, for ten years from the date of the report. If the candidate is reported guilty by his agents of a corrupt practice, he is subject to the like incapacity for three years. If the candidate is reported personally guilty or guilty by his agents of an illegal practice, he is subject to the like incapacity during the period for which be was elected to serve or for which if elected he might have served. If at the date of the report he holds any such corporate office, the office is vacated from that date.
804. Incapacities for voting applying to candidates and other persons.- A candidate or other person reported by an election Court personally guilty of a corrupt practice, or convicted on indictment or by an election Court of a corrupt practice, is for five years from the date of the report or of the conviction, as the case may be, incapable of being registered as an elector or voting at any parliamentary election in the United Kingdom or at any election in Great Britain to any public office, and of being elected to and sitting in the House of Commons, and of holding any public or judicial office ; and, if already so elected or holding such office, vacates the seat or office from that date. A candidate or other person reported by an election Court personally guilty of an illegal practice, or convicted of an illegal practice, is for five years from the date of the report or of the conviction, as the case may be, incapable of being registered as an elector or voting at any parliamentary election or at any election to a public office held, if the offence was committed in reference to a parliamentary election, for or within the constituency for which it was held or for or within any constituency or local government area wholly or partly within the area of the first- mentioned constituency as constituted for the purposes of the election. If the offence was committed in reference to an election under the Local Government Act, 1972, the incapacity applies to being registered as an elector or voting at any election to a public office held for or within any constituency or local government area wholly or partly within the area of the first-mentioned local government area as constituted for the purposes of the election".
' The above observations would show that a candidate found guilty of a corrupt practice (whether done by him personally or through his agent) stands disqualified to hold a public office of any representative character ; and
(ii) that 'ex post facto laws' imposing punishment are unconstitutional being in conflict with section 4 of the Constitution Act 1974.
12. In view of the agreed points reflected above, in the first instance, the questions which require or attention and fall for determination are :-
(1) whether 'civil disability' to hold a public office in this case, said to have been imposed through an ex post facto 'law' (Disqualification Ordinance), is a punishment and runs counter to section 4, subsection (4)(4) of the Constitution Act, 1974, which gives protection against retrospective punishment ?
(2) Whether the other disability for a person to participate in any manner, directly or indirectly, in any political activity which is attached to the disqualification, can be construed as a reasonable restriction. Precisely, the question is whether the provisions of the Disqualification Ordinance are in any way violative of any of the Fundamental Rights guaranteed by the Constitution Act, 1974 7 and
(3) whether section 52(5) of the Constitution Act, 1974, grants immunity to the respondent for his acts and omissions made during his tenure as President even after he walks out of his office ?
13. Subsections (4), (6) and (9) of section 4 of the Constitution Act, 1974, which are relevant for or discussion, are reproduced below :- "(4) Protection against retrospective punishment- No law shall authorise the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission ; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(6) Freedom of assembly. -Every State Subject shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.
(9) Freedom of speech.--Every State Subject shall have the right to freedom of speech and expression. Subject to any reasonable restrictions imposed by law in the interest (Jr the security of Azad Jammu & Kashmir, friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence."
14. In the first instance, we propose to determine the power of the Government, viz. Subsections (6) and (9) of section 4 of the Constitution Act, 1974. The Government is empowered to impose reasonable restrictions in the interest of public order under subsection (6) of section 4 of the Constitution. Similarly the Government is also empowered to impose restrictions on the freedom of speech (i) in the interests of security of Azad Kashmir, (ii) friendly relations with Pakistan, (iii) public order, (iv) decency, (v). Morality, (vi) contempt of Court, (vii) defamation and (viii) incitement to an offence provided the restrictions are reasonable.
15. The word 'restriction' itself denotes a limited restraint and the further fact that the framers of the Constitution have also subjected its imposition to reasonableness shows that it is not an arbitrary power which a Govern ment may use at will and in pursuit of its whims. The grounds on which it can be invoked are given in subsections (4), (6) and (9) of section 4 of the Constitution Act, 1974, as detailed above.
16. In the instant case, it would require determination as to whether any one of the grounds listed above is available to the Government to support the legislation (Disqualification Ordinance). It is now settled law and there, seems to be no doubt at all about its correctness that the reasonableness or otherwise of restrictions placed should also be reasonable and it is exclusively within the province of the judiciary to examine and adjudge as to whether the norms of law have been followed. In Abul A'la Maudoodi v. Government of West Pakistan (1), which was a case involving the declaring of the political party (Jamat-i-Islami) as an unlawful association, discussing the expression `reasonable restriction,' Mr. Justice Cornelius, C. J. (as he then was) stated at pp. 707 and 708 :- "Reason in such affairs being peculiarly the province of the Judiciary, it is surely within judicial review to examine both as to the reasonableness of the law itself, as well as the reasonableness of the mode of application of the restriction, whether such mode be prescribed by the statute or not."
"The view that the expression 'reasonable restrictions' in a case like the present should be considered exclusively in relation to the factual grounds on which the law imposing the restrictions declares that they may be imposed is one, which in my view, cannot be accepted by a Court which is required to enforce a citizen's right of free association as formulated in the Constitution. The citizen is entitled to approach the Court for a declaration, firstly, that his freedom has been restrained under law, and secondly, that it has been unreasonably restrained, and{{FOOTNOTE}}
(1) PLD 1964 SC 673 {{FOOTNOTE}} ' for the determination of the latter question, I find it impossible to exclude from consideration, the circumstances of the application of the restraint. A circumstance of overpowering importance, where the Constitution guarantees such a freedom, would be that the restraint has been applied by a person in authority acting merely on his own opinion. Although some weight might be allowed to the contention of Mr. Manzur Qadir that the Courts should assume that an opinion of the Provincial Government in a case like the present has been formed in a responsible manner after a proper examination of the relevant facts, yet I do not conceive that the intention of the Constitution is that the citizens shall enjoy their Fundamental Rights subject to an opinion based, however responsibly, on the mere one-sided appeasement of such facts as have been brought to the notice of the authority making the order. Great importance is to be attached to the fact that the Constitution itself makes the Governor, namely a single person, the sole source of executive authority in the Province. To accept the view advanced by Mr. Manzur Qadir would be in effect to cause the opinion of single person to prevail against the Fundamental Right of all the citizens, over whom he is to exercise executive responsibility and power in the particular respect. The Courts cannot regard themselves as satisfied that the citizen's freedom has been subjected to a reasonable restriction unless it is proved to their satisfaction that not only the grounds of the restrictions as stated by the law are reasonable in themselves, but they have been applied reasonably as required by the Constitution. The only manner which the Courts themselves would regard as reasonable is that existence of the factual grounds of the restriction should have been established in the mode which the Courts recognize as essential where a right to life or liberty or property is concerned, namely, after a proper hearing given to the person concerned. (1 postpone for later consideration the question whether to grant the hearing after making the order, can ever be reasonable). Any presumption that the authority in question has acted in accordance with justice or reason or equity, if made by the Courts in respect of such actions would, in my opinion, amount to a denial of the duty which the Courts are called upon to discharge in respect of these fundamental matters. The duty of the. Courts would be thus to apply the principles of reason and justice according to the procedures with which they are familiar, to the ascertainment of the questions whether the restrictions in themselves are consistent with justice and reason, whether the conditions for their application have in fact been established, and whether they have been applied by competent authority. These are matters falling within the large principle of judicial review as a power possessed by the Courts, for the correction of excesses in action under law."
17. The test of reasonableness has also been laid down in several Indian cases. To quote one instance, the Indian Supreme Court laid down in Gurbachan Singh v. State of Bombay and another (2), as follows :- "It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in Art. 19(1)(d) of the Constitution are reasonable or not within the meaning of clause (5) of the Article would depend as much upon the procedural part of the law as upon (1)AIR 1952 SC 221 its substantive part ; and the Court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed."
18. On the controversy, we are of the view that from the very nature of things, no bard and fast rules can be laid down as to what matters are relevant or irrelevant for the purposes of determining the reasonableness of an act or restriction. Reasonableness itself is a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances. In or view, it will neither possible nor advisable to lay down any exact or precise enumeration of the matters which may be taken into consideration for testing the reasonableness of such a restriction, for, there can be no general standard of reasonablenes applicable to all cases. It will certainly depend upon the nature and extent of the restrictions sought to be imposed, the nature of the circumstances in which the restriction is to be imposed, the evil sought to be prevented or remedied, the necessity or urgency of the action proposed to be taken and the nature of the safeguards if any, provided to prevent possibilities of abuse of power. All these and there may well be other considerations, such as the objectives of the legislation and the prevailing considerations at the time, in the light of which the reasonableness of law is to be considered.
19. This much, however, appears from decided cases that the Courts, both in this country and in other foreign jurisdictions, have treated a restriction as unreasonable if the restriction is for an indefinite or unlimited period of disproportionate to the mischief sought to be prevented or if the law imposing the restriction has not provided and safeguard at all against arbitrary exercise of power. We are, however, not prepared to go to the extent of saying that if a law merely confers as unfettered discretion, the law must not necessarily be bad, because at times situations may arise when power must be vested in some authority to take immediate steps to prevent acts fraught with imminent danger, even though such prevention encroaches upon the fundamental rights guaranteed to citizens by the Constitution of the country. But in those cases too, the reasonableness of the steps taken would be dependent upon the circumstances which necessitate taking of such a drastic action having due respect to the duration for which it remains operative. If the circumstances do not demand such action or the action is disproportionate to the mischief to be prevented or it is disproportionate to the need of the time and can be exercised without any check, then the restriction will certainly be unreasonable.
20. To safeguard the Fundamental Rights the rule of law requires that such rights ought to be embodied in a Constitution, which would guarantee that the essential, basic and fundamental human rights shall be preserved and respected. Here we may be permitted to quote the words of Late Chief Justice, M. R. Kayani, whose memory is so dear to us all, that Fundamental rights are so fundamental and inalienable that they cannot be taken away any power or agency as they belong to human by virtue of their being born as such. That was a very emphatic and bold remark on the most important aspect of the rule of the law. To achieve this end, it is generally insisted that these rights should be embodied in the Constitution and a machinery should be provided for their enforcement to see that there is no encroachment upon them by any organ of the Government.
21. Let us now see as to which is the authority responsible for the proper implementation and showing regard to the concept of such a law. It may be stated here that in every civilized society, Constitutional guarantee of the due process of law and at the same time existence of judicial machinery to enforce the guarantees are regarded as the most cherished and effective safeguard for the enforcement of the rule of law ; especially the law which covers the fundamental rights of the citizens. The superior judiciary is always and very rightly expected to be vigilant to see that the fundamental rights and in fact every right enshrined in the Constitution are not violated and the.
Legislature functions within its defined legal bounds. When a question arises whether the prescribed limits have been exceeded, the Court must, as of necessity, determine the question and the only way in which it can properly do so is by looking to the terms of the Constitution by which affirmatively the Legislative powers are restricted. If the impugned Act of the Legislature is within the competence of the Assembly and it violates no express condition or restriction imposed by the Constitution, it will not be for the Court to inquire any further but if the Act violates any Constitutional restriction or limits, it is invalid and the Court, being the custodian and protector of the Constitution, is under an obligation to strike it down. This is especially true, as said elsewhere, as regards the Fundamental Rights to which the superior Courts have been assigned the role of a sentinel. We are supported in or in Azad Government of the State of Jammu & Kashmir v. Kashmir Timber Corporation (1). It has been observed in that case at page 184 :-- "There are no sovereign rights in the Legislators to impose their will, as to be superior to these rights.
The essence of a written Constitution is that it defines and regulates the powers of different organs of the State by imposing limitations on the exercise of the authority by them, and if there be a conflict between the Constitution and a sub-constitutional law or the ordinary law, the latter must yield to the former which must govern the decision in a particular case."
' On the point at page 9 of Basu's Commentary of the Constitution of India (4th Edn.), Vol. I, it is observed :- "A written Constitution means Limited Government. The Constitution divides the sovereign powers amongst the three organs of Government, Executive, Legislature and Judiciary, so that the powers of each are defined by the Constitution, and none can act beyond its own powers or usurp that legitimately belong to another organ under the Constitution. A written Constitution thus provides the organic or fundamental law, with reference to which the validity of laws enacted by the Legislature to be tested. A law enacted by the Legislature cannot transgress or violate the provisions of the fundamental law. Thus, the Parliament under the Indian Constitution cannot be said to be a sovereign Legislature in Dicean sense (underlining* is ours).
' Observation at pages LXIII and LXXVII in V. N. Shukla's Constitution of India (6th Edn.), by K. D. Singh is also relevant. It reads :- "Judicial review in India is based on the assumption that the Constitution is the supreme law of the land, and all governmental organs, which own the organ to the Constitution and derive their powers from its provisions, must function within the framework of the Constitution, and must not do anything which is inconsistent with the provisions of the Constitution. This involves two connected matiers. Firstly,{{FOOTNOTE}}
(1) PLD 1979 SC (A & K) 139 {{FOOTNOTE}}Mere in Italics] ' there must be some authority, normally the Courts of law, which can prevent the Federal and State Governments from encroaching upon each other's powers and declare laws made by them ultra vires on the ground of excess of power. Secondly, it is not enough to empower the Courts to pronounce upon the constitutionality of enactments of the Federal or State Governments. What is more important is to constitute a final Supreme Court which should not be dependent upon the Federal or State governments, and should have the authority to say the last word in matter involving constitutional interpretation."
' In A. K. Gopalan v. State of Madras (1) it was observed :- "In discussing these points, it should be well to keep in mind the general scheme of the Indian Constitution relating to the protection of the Fundamental Rights of the citizens and the limitations imposed in this respect upon the legislative powers of the Government. The Constitution of India is a written Constitution and though it has adopted many of the principles of the English Parliamentary system, it has not accepted the English doctrine of the absoluted supremacy of Parliament in matters of legislation. In this respect, it has followed the American Constitution and other systems modelled on it. Notwithstanding the representative character of their political institutions, the Americans regard the limitations imposed by their Constitution upon the action of the Government, both legislative and executive, as essential to the preservation of public and private rights. They serve as a check upon what has been described as the despotism of the majority ; and as was observed in the case of Hertado v. The People of California (110 U S 516) 'a government which holds the lives, the liberty and the property of its citizens, subject at all times to the-absolute disposition and unlimited control of even the most democrative depository of power, is after all but a despotism.' In India it is the Constitution that is Supreme and Parliament as well as the State Legislatures must act only not within the limits of their respective legislative spheres as demarcated in the three lists occurring in Schedule 7 to the Constitution, but Part III of the Constitution guarantees to the citizens certain fundamental rights which the legislative authority can on no account transgress. A statute law to be valid must, in all cases be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not. Article 13(2) is imperative on this point and provides expressly that the State shall not make any law which takes away or abridges the right conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Clause (1) of the Article similarly invalidates all existing laws which are inconsistent with the provisions of this part of the Constitution.
22. From the Pakistan jurisdiction we may quote another case. In State v. Zia-ur-Rahman (2).
Hamoodur Rehman, Chief Justice (as he then was), speaking for the Court, remarked that :- "The learned Attorney-General cited the observations of Garner in his book on Administrative Law (page 14) to support the contention that the British Parliament can pass any law it likes with the reasonable{{FOOTNOTE}}
(1) AIR 1950 SC 27 (2) PLD 1973 SC 49{{FOOTNOTE}} ' certainty that its verdict will be recognised and enforced by the Courts as law and that there is no limit at all on the legislative powers of Parliament. These observations with regard to the powers of the British Parliament are, however, of little assistance to us, for, there is no written Constitution in Great Britain. So, no question relating to the Constitutional vires of a Legislative measure could arise under such a system, in the same fashion as an issue of constitutional vires would be cognizable by the Supreme Court of the United States of America or of Australia or India or indeed of any country governed under a written Constitution. As the learned Attorney-General has himself conceded, in the case of a government set up under a written Constitution, the functions of the State are distributed amongst the various State functionaries and their respective powers defined by the Constitution."
' His Lordship further observed :-- "Of late, the practice has also grown up of incorporating within the Constitution itself of a declaration of fundamental rights and even basic principles of State Policy. In countries which adopt a detailed Constitution, the Constitution is thought of as an instrument by which Government can be controlled, and it is for this reason that generally some measure of rigidity in the procedure for the amendment of the Constitution is also introduced and the Constitution is conceived of as a fundamental or an organic of a Supreme Law standing in a somewhat higher position that the other laws of the country. It then assumes the position of a law on the basis of which the vires of all other sub-Constitutional laws and the validity of governmental actions can be judged."
23. The sum total of or above discussion is that it is the duty of the' Superior Courts to see that the Legislature works within its limits and if it fails to keep itself within own Constitutional limits, the judiciary would step in to enforce compliance with the Constitution. This is no doubt a delicate task has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed upon them or when they claim to exercise power which the Constitution has been careful to withhold from them.
24. Our Legislature or the Government, which functions as law-making body in absence of the Assembly, it admits of no doubt, has powers limited by the Constitution Act, 1974, which created it and it can do nothing beyond the limits which circumscribe these powers. If the Government or any law-making body, therefore, travels beyond its sphere and takes steps to legislate on a matter not within its power or legislates in contravention of the Constitution, such a legislation is void ab initio and is necessarily to be recalled.
25. After discussing the scope of the legislation to be made by the Assembly or the Government, let us now see as to whether the present legislation, i.e. Disqualification Ordinance, in any way, as argued, violates the provisions of subsections (6) and (9) of section 4 of the Constitution Act, 1974?
Subsection (6) deals with the freedom of assembly while subsection (9) deals with the freedom of speech. Under subsection (6) of section 4 of the Constitution Act, 1974, every citizen of Azad Kashmir has the right to assemble peacefully and without arms, of course, subject to any reasonable restriction imposed by law in the interest of security of Azad Jammu & Kashmir, friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
26. In Azad Kashmir, nowadays in the absence of Assembly the opinion of a single person, i.e. The President/Chief Executive Azad Kashmir prevails and, therefore, it becomes all the more necessary for the Courts to be at guard to see that the authority does not transgress its limits and legislation made by such an authority encroaches not upon the rights of the citizen specially fundamental rights which have been enshrined in the Constitution Act, 1974. The opinion of such an authority to prevail against fundamental rights of the citizens over whom the authority is to exercise executive responsibility is not recognized by the Constitution.
27. In view of the state of law, the Courts, when a question arises, must be satisfied about the reasonableness of the law and the Courts, it should be remembered, cannot regard themselves as satisfied that the citizens' freedom has been subjected to a reasonable restriction unless it is established to their satisfaction that not only the grounds of the restriction are reasonable in themselves but they have been applied reasonably as required by the Constitution. The restriction should be consistent with justice and reason and it should be seen as to whether the condition for its application is established. All these facts must have a judicial review.
28. Now going to the issue, let us see the penalty of misconduct under the Disqualification Ordinance. Under subsection (5) of section 6 of the Disqualification Ordinance, a person who is found guilty of misconduct would not only stand disqualified for a period of seven years for being elected or chosen as a member of the Assembly or Council but such a person also stands debarred to participate in any manner whatsoever directly or indirectly in any political activity, close door or otherwise, for the said period.
29. The question posed to us, therefore, is as to whether the penalty which places restriction upon a person not to participate directly or indirectly in any political activity is a reasonable restriction as stipulated under subsections (6) and (9) of section 4 of the Constitution Act, 1974, or it offends these provisions. The very Constitution Act, 1974 (section 4(6) and (9), stipulates that the Government is only empowered to impose reasonable restrictions regarding freem of assembly in the interest of public order under subsection (6) of section 4 of the Constitution Act, 1974. Similarly, the Government is also empowered to impose reasonable restrictions on the freedom of speech (i) in the interest of security of Azad Jammu and Kashmir, (ii) friendly relations with Pakistan, (iii) public order, (iv) decency, (v) morality, (vi) contempt of Court, (vii) defamation and (viii) incitement to an offence. It would be thus observed that the Legislature cannot have its arbitrary will to impose any restriction in pursuit of its whims.
30. Adjudging the reasonableness of law under discussion viz. The above statement of law, we are of the considered view that none of the grounds mentioned in subsections (6) and (9) of section 4 of the Constitution Act, 1974, is available to the Government to support the legislation and the Government, in fact, failed to keep itself within its Constitutional limits and proceeded to legislate a law which offends the provisions of subsections (6) and (9) of section 4 of the Constitution Act, 1974. Our reasons are :-
(i) The restriction flowing from the order of disqualification affects the rights of a person of freedom of assembly, freedom of speech and also bars' participation of a person directly or indirectly in any political activity. This total restriction is unreasonable as it is opposed to the public policy, norms of law and basic human rights, which are enshrined in the Constitution Act, 1974.
(ii) A person, even after his disqualification, may well work for the advancement of the interest of society ; say for Islamisation of the laws and the reformation of the society in accordance with the mandate of the Holy Qur'an and Sunnah. But if this provision of the Disqualification Ordinance remains on the statute book, such a person may not even be allowed to do so. We wonder how such a restriction can be said to be reasonable.
(iii) Again such a person may form an association for propagating and publishing the literature for the accession of the Jammu & Kashmir State to Pakistan and to strive and propagate for the economic uplift and welfare of Jammu & Kashmir nationals. Can a legislation taking away such a right to construed to be reasonable? The answer is negative.
(iv) The restriction imposed to jeopardise the fundamental rights enshrined in subsections (6) and
(9) of section 4 of the Constitution Act, 1974, is disproportionate to any of the intended mischief sought to be prevented. Of course, as said elsewhere, at times situation may arise when the authority may make a law to encroach upon the fundamental rights guaranteed to the citizens of the country. But here again the reasonableness of it would be dependent upon the circumstances which necessitate to take such a drastic action. In the case before us, there is nothing on the record to show that such a drastic action for a person disqualified to fight an election, as to forbid him to form any association or make a speech even for the betterment of the society and the nation on the whole, was essential. Such a restriction may have some justification for enemy agents, persons propagating against Islam or indulging in anti-State activities but not to others.
(v) The Disqualification Ordinance is detrimental to the best interests of the public and also disproportionate to any feared mischief and that extent it encroaches upon the fundamental rights guaranteed to the citizens under subsections (6) and (9) of section 4 of the Constitution Act, 1974.
(vi) A person, after his disqualification though ineligible to fight the election himself, still cannot to restrained to propagate for a proper choice of a candidate to be a member of the Assembly, or the Council. In order for citizens to be able to make an intelligent choice of the representative or President it is necessary for them .To know the real political orientation of each candidate and how a disqualified person can be debarred to make speech or form association for the achievement of this purpose. The programme and promise to each individual candidate are not too significant or informative because most candidates in their attempt to gain the most votes try to avoid to open their true heart in their speeches ; they all tend to speak the same language, that is, to camouflage their real opinion. The fact that one belongs to Muslim Conference, the other to the Liberation League, third to the Liberation Front and fourth to Communist Party (if at all there is any) provides a far better clue as to how the candidate will perform when in office because every party has got its own programme for the people. So a disqualified candidate cannot be refused under law to tell the people about the programme and ideology of a party. How, therefore, a restriction not to propagate for or against a party can be placed on a person disqualified to fight an election for a political office?
(vii) Political activity which is to propagate the political philosophy is not mere unpractical speculation, it is a vitally important aspect of life. Political philosophy may thus be viewed as one of the most important intellectual discipline, for it sets standard of judgments and defines constructive purposes for the use of public power. Such a consideration of the purposes for which power could be used are in a very real sense for urgent today than they have been in any earlier historical period because mankind had at his disposal the power either to create a world civilization in which modern technology can immeasurably benefit the human race, or it destroys itself in pursuit of political myths. In this situation the scope of political philosophy is great. How, therefore, can a total bar be created for a person disqualified not to take part in political activities which indirectly would debar such a man to speak political philosophy even in the interest of community on the whole.
31. It may be observed that the Constitution Act, 1974, so far as liberty is concerned, gives not only liberty to the persons but it also protects the rights attached to the persons (jus personarum).
Liberty to the persons, without protecting their rights is meaningless. Suppose a citizen is given the liberty attached to his person to move about anywhere he likes but if his right to speak, of course within law, is denied to him his mere liberty to move about freely would be futile and would lose importance to a great extent.
32. Viewed in their setting among the group of provisions relating to right of freedom, subsections
(6) and (9) of section 4 of the Constitution Act, 1974, presuppose that citizen to whom the position of these fundamental rights is secured, retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rest. But a person for committing a crime or otherwise, say for the anti-State activities etc. Can lawfully be deprived of his freedom and there can no longer be any question of his exercising or enforcing the rights under subsections (6) and (9) of section 4 of the Constitution Act, 1974. The deprivation of personal liberty in such a situation, we confess, does not offend the provisions of the sections. In other words no bar can legally be created in the enjoyment of certain civil rights, but this liberty is subject to any of the laws of the land. So committing a crime or indulging in anti-State activities or creating situation which can reasonably be said to be against the ideological o geographical frontiers of the State cannot be protected and if a person indulges in such activities, the law will have its own course.
33. As, for the reasons stated above, we have reached the conclusion that the law (Disqualification Ordinance) to the extent indicated above I ultra vires of subsections (6) and (9) of section 4 of the Constitution Act, 1974, and is void. This law (Disqualification Ordinance) is a subordinate legislation and when it adversely affects the Constitutional provisions, i. e. Subsections (6 and (9) of section 4 of the Constitution Act, 1974, it cannot sustain an to that extent it shall be considered as non- existent. We, therefore, strike provision insofar as it forbids all political activities for a person who stand disqualified to contest an election for 7 years tinder the Disqualification Ordinance,.
34. After disposing of the issue regarding the reasonableness of the Disqualification Ordinance vis- a-vis subsections (6) and (9) of section 4 of the Constitution Act, 1974, we now proceed to the next limb of the argument as to whether the disqualification for holding public office under the provisions of Disqualification Ordinance for past acts and omissions is violative of subsection (4)
(4) of section 4 of the Constitution Act, 1974.
35. The question, precisely, which falls for determination is to see as to whether past acts and comissions which 'are being met with civil disability can be construed to be a punishment as stipulated under subsection (4) (4) (a) of section 4 of the Constitution Act, 1974. Therefore, the question posed is whether imposition of civil disability of the nature in the case (disqualification to hold a public office) can be construed to be a punishment under the Constitution Act, 1974.
36. According to Mr. Zafar, the learned counsel for the respondent, the word 'punishable' used in subsection (4)(4) (a) of section 4 of the Constitution Act, 1974, which reads:- "for an act or omission that was not punishable by law at the time of the act or omission," covers not only the punishment for an offence but also covers imposition of a civil disability of the nature in this case. This punishment, in his estimation, can be for an offence as well as for an act or omission which may riot be termed as an offence.
37. In support of his view, Mr. Zafar has referred us to Jamalus Sattar v. Chief Election Commissioner (1). This case deals with the elections disqualification. It decides the issue with reference to Article 4 of the Pakistan Constitution, 1962. The controversy in that case had arisen in the following way: Under President's Order No. 4 of 1964 a person convicted for an offence could be disqualiffed from being elected as a member of the Assembly if the Commissioner makes the order to that effect.
Subsequently, by President's Order No. 39 the provision was amended and it was provided that such a disqualification could be ordered even where a person had been found guilty of any corrupt or illegal practice as defined in the Order. The corrupt practice, in that case alleged against the petitioner, was committed by him on 16-4-1962 while the amendment came into force on 8-12- 1962, and the Tribunal held him guilty of corrupt practice on 8-2-1963.
The finding was challenged in that case mainly on the ground that the amendment in President's Order No. 39 imposed an additional penalty inasmuch as the misconduct or corrupt practice was not punishable with any disqualification on 16-4-1962 on which date under the original President's Order No. 4 of 1962 only a person convicted of any offence could be disqualified.
38. The above circumstances would show that the whole issue was whether the disqualification imposed later in time on account of the alleged corrupt practice, which was not a disqualification at that time when Jamalus Sattar was elected to the public office, amounted to imposition of penalty, or not.
39. The learned Judges, after discussing the matter at length (at pages 791-794) held that the disqualification is a penalty and that in the case the disqualification for an act of corrupt and illegal practice was an additional penalty, it is covered by definition of 'punishment' and imposition{{FOOTNOTE}}
(1) PLD 1964 Dacca 788{{FOOTNOTE}} ' of such a punishment with retrospective effect was unknown to the Constitution. The definition of 'Punishment' spelt out in the case of John A. Cummings v. The State of Missouri (1), was approved by the learned Judges and is as follows:-"The deprivation of any right, civil or political previously enjoyed, may be punishment."
This case is obviously distinguishable.
40. From the Supreme Court of United States of America, the following cases were cited by Mr. Zafar: -
(1) John A. Cummings v. The State of Missouri 18 U S SCR (L Edn.) 356 (3) United States v. Lovett (1946); and
(3) United States v. Brown (1965).
' In John A. Cummings v. The State of Missouri, it had been observed:- "We do not agree with the counsel of Missouri that to punish one is to deprive him of life, liberty or property and to take from him anything less than these is not punishment at all. Again, the deprivation of any right, civil or political, previously enjoyed, may be punishment. Disqualification from office may be punishment. Disqualification from pursuits of avocation may also be imposed as punishment. Their Lordships noted that in France deprivation or suspension of Civil rights or some of them, and among these of the right of voting, eligibility to office, are punishments. Finally the Lordships concluded that the word punishment embraces deprivation or suspension of .Political or civil rights..."
' In United States v. Lovett it was held:- "A provision which clearly was to purge the then existing and all future lists of Government employees of those whom Congress deemed guilty of subversive activities and therefore 'unfit' to hold a federal job". Their Lordships after interpreting the section held that section 304 falls precisely within the category of actions which the Constitution barred by providing that no Bill of Attainder or ex post facto laws shall be passed.
' The Court relied on Cummings v. State of Missouri and also on a case reported as Ex parte Garland (18 Led 366) which required Attorneys practising before the Supreme Court to take a special oath. After relying on these two cases (which were decided in 1867) their Lordships observed neither of these cases has ever been overruled.
' Then the Court observed in reference to section 304 that a permanent prescription. From any opportunity to serve the Government is `punishment'. The other aspect of the case was that section 304, affected certain named individuals or ascertainable individuals and was thus void as a Bill of Attainder. This issue is not involved in or case but their Lordships have made a very pertinent observation which is quoted in extenso: "No one would think that Congress could have passed a valid law, stating that after investigation it had found Lovett, Dodd, and Watson `guilty' of the crime of engaging in 'subversive activities', defined that term for the first time, and sentenced them to perpetual exclusion from any Government employment'."{{FOOTNOTE}}
(1) 18 USSCR(LEdn.) 356{{FOOTNOTE}} ' In United States v. Brown (1965) it was held that a provision of the Labour Management Reporting and Disclosure Act of 1959, making it a crime for a Communist Party member to serve as an Officer or employee of a labour union, was unconstitutional as a bill of attainder. Though Congress may legislate to prevent political strikes primarily designed to disrupt commerce and industry, it may not by legislation punish persons who belong to a party which might foment political strikes.
41. In all the three cases mentioned above, the law in question did not create any offence nor it stipulated punishment for the violation of any penal provision. The first case related to prohibition on practice which was held to be punishment. The other two cases are of denial of employment or of holding Union office. Even these have been categorised as punishment.
42. Apart from the above, Mr. Zafar also made a reference to Garner v. Board of Public Works of City Los Angeles (1). It has been observed in this case: "The deprivation of man's means of livelihood by reason of past conduct, not subject to this penalty when committed, is punishment whether he is a professional man, a day labourer who works for private industry, or a Government employee. The deprivation is nonetheless unconstitutional whether it be for one single past act or a series of acts."
43. Reference was also made to Constitution of the Islamic Republic of Pakistan by Muhammad Munir, 1975 edition, wherein he has reviewed the Indian, Pakistan and the American provisions on this fundamental right, and has opined that whereas under the Indian Constitution the word 'punishment' is restricted to the penal laws and offences, it is not the case in Pakistan nor in U. S. A.
Accordingly the law providing civil disabilities and disqualifications for elections may in Pakistan be held as ex post facto and declared ultra vices. It would be better to have the words of Justice Munir which appear at page 126 of the Constitution of the Islamic Republic of Pakistan (1975 Edition). He says:- "The provision in or Constitution differs from the Indian provision, inasmuch as the words 'convicted' and "offence"- which are .Used in the latter, do not occur in sub-clause (a) of the former, though the word "offence" has been used in sub-clause (b). It may, therefore, be argued that the scope of sub-clause (a) of or provision which employs the words !Punishment' and 'punishable' without defining them is wider than that of the Indian Article, and that laws providing civil disabilities and disqualifications for professions, trades, elections and callings for past acts and omissions may in Pakistan, as in the United States of America, be held ex post facto. The Supreme Court of the. United States has ruled that statutes requiring test-oath for past conduct from entrants to a profession or calling are in the nature of penalties for past acts and, therefore, ex post facto. It is immaterial for the purpose of the provision whether the past conduct is pre-Constitution or post-Constitution. If the conduct was not punishable at the time, it cannot be made punishable subsequently."
44. On the basis of the above, Mr. Zafar, the learned counsel for the respondent, wants us to believe that penalty for 'misconduct', stipulated under the Disqualification Ordinance, even if construed to be civil in nature,{{FOOTNOTE}}
(1) 341 U S 716 (1951)' {{FOOTNOTE}} ' is a 'punishment' and the law from Pakistan as well as from United States of America treats such a legislation, for past acts and omissions, as a punishment and encroachment upon the fundamental rights enshrined in the Constitution. In his estimation, the present law (Disqualification Ordinance), which makes an innocent act or omission at the time when it was committed actionable later in time and is enacted to deprive a person from holding a political office, has to be struck down.
45. Ch. Fazal-i-Hussain, the learned counsel for the appellant, in opposition assailed the validity of the arguments advanced by Mr. Zafar and contended-
(i) that the proceedings before a Disqualification Tribunal under the provisions of the impugned Disqualification Ordinance shall be deemed to be of civil nature and verdict of misconduct emanating from such a finding cannot, under the relevant provisions of the Constitution (subsection (4)(4) of section 4 of the Constitution Act, 1974), be construed as a punishment, or penalty for an offence. The relevant provisions of the Ordinance are neither penal nor they create any offence so as to run counter to subsection (4)(4) of section 4 of the Constitution Act, 1974, which provides protection against the retrospective punishment. In his view the provision of Constitution Act, 1974, contemplates a punishment which is only meant for an offence and not for any sort of disqualification of a civil nature;
(ii) that the impugned Ordinance is in the nature of law providing for disqualifications/qualifications for the membership the Assembly Council. In framing such a law, the law-giver has enacted a law in conformity with the Injunctions of Islam regarding accountability and has not contravened any of the Fundamental Rights guaranteed by the Constitution Act, 1974.
The questioner Ordinance, in his view, is within the ambit of section 24 of the Constitution Act, 1974, which reads:- "Qualification of members of the Assembly.-(1) A person shall be qualified to be elected as, and to be, a member of the Assembly if-
(a) he is a State Subject;
(b) he is not less than twenty-five years of age; and
(c) his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan.
(2) A person shall be disqualified from. Being so selected if-
(a) he is of unsound mind and stands so declared by competent Court ; or
(b) he is an undischarged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent ; or
(c) he has been on conviction for any offence sentenced to transportation for any term of imprisonment for a term of not less than two years unless a period of five years has elapsed since his release ; or
(d) he holds any office of profit in the service of Azad Jammu & Kashmir or in the service of Pakistan other than an office which is not a whole-time office remunerated either by salary or by fee other than an office specified in the Second Schedule ; or
(e) he has been dismissed for misconduct from the service of Azad Jammu & Kashmir or the service of Pakistan unless a period of five years has elapsed since his dismissal ; or
(f) he is otherwise disqualified from being a member of the Assembly by this Act or by or under any other law."
In his view the Ordinance in question in effect is, as provided under subsection (2) (f ) of section 24 of the Constitution Act, 1974, in the realm of providing for qualifications or disqualifications for the persons who would be eligible to contest the elections in future. Udder section 24 (2) (f) of the Constitution Act, 1974, he maintains, the Legislature, at any time before the election, can make may law prescribing qualification or disqualification for a candidate ; and
(iii) that it is a good general rule that a law should not operate retrospectively but there are cases where law must justly and for the benefit of the community and also for individuals relates to a time antecedent to their commencements statutes of oblivion or pardon and this case can well be covered by such an exception.
46. The question, therefore, which falls for determination is as to whether the mere fact that an act or omission is made actionable retrospectively by law would render such a law ultra vires of subsection (4) of section 4 of the Constitution Act, 1974? Precisely, the issue before us is as to whether disqualification for election to a public office which is a civil disability can be construed to be a 'punishment' as stipulated under subsection (4)(4)(a) of section 4 of the Constitution Act, 1974. If it is a punishment, it would be said that it militates against the provisions of subsection (4)
(4) (a) of section 4 of the Constitution Act, 1974 but if it cannot be termed as a punishment, the Ordinance would be saved.
47. In support of his statement Ch. Fazal-i-Hussain has cited the following cases from the Pakistan jurisdiction (1)Hamidul Haq Chowdhury v. His Excellency The Governor-General of Pakistan PLD 1953 FC 279.
(2)Government of Pakistan v. Syed Ikhlaque Hussain PLD 1965 (W. P.) Lah.
147.
48. These cases have no application to the facts of the case before us. Hamidul Haq Chowdhury v.
His Excellency the ' Governor-General of Pakistan (I), the first case cited by Ch. Fazal-i-Hussain, has no relevancy to the issue. This case is cited to support his argument that the finding of the Tribunal, under the Disqualification Ordinance, is of administrative character and, therefore, cannot be termed as a punishment. The law involved in that case was the Public and Representative Offices (Disqualification) Act, 1949, (PARODA) and question was whether the finding of the Tribunal constituted under the Act could be appealed against in the Supreme Court or not. The Act of 1949 did not provide for any appeal and the Special Leave to Appeal was filed on the ground that because the Tribunal was headed by the two Judges of the High Court, therefore, an appeal against their finding before the Supreme Court was competent. The provisions of the PARODA were analysed and their Lordships of the Supreme Court came to the conclusion that under the Act the finding of the Judges was to be sent to the Governor who then was to give a decision and notify his intention of disqualifying a person.
49. In the context of these provisions, their Lordships of the Supreme Court held that the finding of the learned Judges, sitting as members of the Tribunal, was not a judicial finding and an appeal did not lie to the Supreme {{FOOTNOTE}}
(1) PLD 1953 FC 279 {{FOOTNOTE}} ' Court. The impugned Ordinance, however, is totally different. The disqualification follows the order passed by the Judges and is not dependent on the order of the President or the Chief Executive and an appeal is directly provided to the Supreme Court under the Ordinance itself. Thus, the case cited above has no relevancy to the facts of the present case.
50. The next case 'Government of Pakistan v. Syed Ikhlaque Hussain' (1), cited by Ch. Fazal-i- Hussain, has also little relevancy to the facts of the present case. In that case, their Lordships held that the case in question was not covered by the protection of Fundamenta 1 Right No. 4 of 1962 Constitution of Pakistan because the appointment as Judge could not possibly be held to be an act within the meaning of clause (a) of the Right. Thus, their Lordships held that no 'act' of Syed Ikhlaque Hussain was involved when he was appointed as a Judge. It is only, it was said, when a punishment is inflicted for an act of the delinquent that the attraction of the Fundamental Right is to be judged.
51. The learned counsel also seeks support from a case decided by this Court on 25-3-1980 titled 'Ch. Muhammad Ashraf v. Chief Secretary' (C. A. No. 31 of 1979) wherein it was held that disqualifying a person to hold a public office is not a punishment as envisaged in the Constitutional protective provisions against retrospective punishment, i.e. Subsection (4) (4) (a) and (b) of section 4 of the Constitution Act, 1974.
52. The learned counsel then referred us to the following cases from the Indian jurisdiction :-
(1) Maqbool Hussain v. State of Bombay AIR 1953 SC 325,
(2) Suresh Chandra v. Himangshu Kumar Roy AIR 1953 Cal.
316.
(3) Jamuna Prasad Mukharjya v. Lachhi Ram AIR 1954 SC 686.
(4) Raj Narain Singh v. Atmaram Govind AIR 1954 All. 319,
(5) Leo Roy Frey v. Superintendent, District Jail, Amritsar AIR 1958 SC 119.
(6) A. M. S. Muhammad Kasim v. The Assistant Collector of Central Excise AIR 1962 Mad.
85.
In the first case, i.e. Maqbool Hussain v. State of Bombay (2), it has been held :- "We are of the opinion that the Sea Customs Authorities are not a judicial Tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. It therefore follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a Court of judicial Tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have been "prosecuted and punished "for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay in the complaint which was filed against him under section 23, Foreign Exchange Regulation Act.
"{{FOOTNOTE}}
(1) PLD 1965 (W. P.) Lab. 147 (2) AIR 1953 SC 325 {{FOOTNOTE}} ' In Saresh Chandra v. Himangshu Kumar Roy and others (I) it has been held at page 319 :- "The word 'Prosecution' in Art. 20(2) means judicial proceedings before a Court or legal tribunal. It cannot have reference to departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment on an officer belonging to the department for any misconduct."
In Raj Narain Singh v. Atmaram Govind and others (2) it has been observed at page 334 .:- "The word 'prosecution' in Article 20(2) means judicial proceedings before a Court or legal tribunal and could not include departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment on an officer belonging to the department for any misconduct. Now it strikes me that the words 'prosecution and punishment' have reference to criminal offences and have the effect of limiting the scope of the articles to criminal proceedings before a Court of law or judicial tribunal competent to deal with criminal cases.
' The word 'offence' as used in the Article contemplates a criminal offence and not all types of offences. In any case, for an 'offence' there has to be an act or omission made punishable by any law for the time being in force. Significance has, therefore, to be attached to the word 'made'. That word carries with it the implication that some authority empowered to do so has laid down the law.
The law contemplated in the Article would appear to be an enacted law by a Legislature or by a body of persons authorised by the Legislature to make it. A difficulty that I feel is that while the punishment for offences has been prescribed by rule 63 of the Rules of Procedure of the Assembly framed under Article 208 of the Constitution, the offences themselves have not been so defined by those rules. Can we go to the extent of holding that the whole law of the Parliament, i.e. The British Parliament, as developed in the course of centuries relating to breaches of privilege was also made a part of the law of this country by Article 194 (3) of the Constitution. I feel that I cannot hold that the essential elements of the word 'offence' as used in Article 20 (2) have been made out."
(Underlining is ours)
' In Jamuna Prasad Mukharjya v. Lachhi Ram (3) it has been observed :- "The right to stand as a candidate and contest an election is not a common law right. It is a special right created by the statute and can only be exercised on the conditions laid down by the statute.
The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members. Of Parliament. If they want that they must observed the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are 'infra vires'."
(Underlining is ours)
' In Leo Roy Frey v. Superintendent, District Jail, Amritsa (4) it has been held :- {{FOOTNOTE}}
(1) AIR 1953 Cal. 316 (2) AIR 1954 All. 319
(3) AIR 1954 SC 686 (4) AIR 1958 SC 119 {{FOOTNOTE}} "The fact that the Collector of Customs acted judicially is not decisive and does not necessarily attract the protection guaranteed by Art. 20 (2) and the question still remains whether the petitioners' case comes within the provisions of Article 20(2). The Article protects a person from being 'prosecuted and punished for the same offence more than once."
(Underlining is ours)
' In A. M. S. Muhammad Kasim v. The Assistant Collector of Central Excise (1), it has been observed :- "The imposition of a civil penalty, such as confiscation or seizure of a penal tax, by the administrative agencies employed to implement the law relating to income tax, customs, etc. Will not thereby absolve the transgressor from liability to criminal prosecution, if he is liable upon those identical facts. Such imposition of civil penalties will not amount to a conviction and sentence under the criminal law in any sense, so as to attract the application of the doctrine of 'doubly jeopardy'."
53. The close-examination of the cases from Indian jurisdiction shows that the superior Courts in India are one to say that 'punishment' under the Indian Constitution shall only be construed for an act or omission in the realm of criminal law. Vamuna Prasad -Mukhariya v. Lachhi Ram' also decides that the right to contest the election is not a common law right. The only aspect which is to be cared and attended, therefore, is as to whether the law enunciated in the Indian cases can be made applicable to the present case seeing it through the eyes of Azad Kashmir Constitution. The issue will be attended at the proper place in the lines to follow.
54. Let us now refer to the cases from Supreme Court of United States of America cited and relied upon by Mr. Zafar. In the Supreme Court of United States of America John A. Cummings v. The State of Missouri (2) was decided as back as in 1867, while United States v. Lovett (3) was decided on 3- 6-1946. The last case Garner v. Board of Public Works (4) was decided on 4-6-1951.
55. We have examined these cases and find them distinguishable, having small relevancy to the facts of the present case. They have been decided on the basis of the provisions contained in the American Constitution which are not identical with the relevant previsions of Constitution Act, 1974.
56. Apart from the above, it is significant that in the last case 'Garner v. Board of Public Works', the Supreme Court affirmed the Judgment of the Court below and dismissed the appeal of Mr. Garner who had claimed reinstatement as Municipal employee and the recovery of unpaid salary. In the narration of facts, at the first page or the Judgment, it is stated that it could be required of an employee to disclose his past and present membership in the Communist Party and that a Municipal Ordinance requiring Municipal employees to take oath that they had not during five preceding years advocated, or belonged to an organization advocating, overthrow of Government by force and violence was not invalid as being 'ex post facto', as constituting a Bill of Attainder', or as denying the process. Besides this, the cases 'United States v. Lovett' and 'Cummings v. State of Missouri' have {{FOOTNOTE}}
(1) AIR 1962 Mad. 85 (2) 18 Lawyers' Edn. 356
(3) 328 U S 303
(4) 341 U 716 {{FOOTNOTE}} ' been attended to and discussed in paragraph 11-13 of the report. While discussing the case of Lovett the Supreme Court observed as under:- "We are unable to conclude that punishment is imposed by a general regulation which merely provides standards of qualification and eligibility for employment."
' Dealing with the case of Cummings it was held:- "Legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocation of life. "
' In the dissenting judgment in the last paragraph Mr. Justice Black observed as under:- "The opinion of the Court creates considerable doubt as to the continued validity of three of or past decisions; Cummings v. State of Missouri, 4 Wall 277, 18 L. Ed. 356, Ex parte Garland, 4 Wall, 333, 18 L Ed. 366; United States v. Lovett, 328 U S 303, 66 S. Ct. 1073, 90 L. Ed.
1252. "
57. It is thus manifest that the first two cases were not approved in the latter case of Garner decided by the Supreme Court of United States of America in 1951. It may be of some interest to observe that in the principle of 'Bill of Attainder' or 'ex post facto law' expounded in the American authority does not seem to be applicable to the facts of the present case. The respondent, under the provisions of the Disqualification Ordinance, was not being deprived of an office which he was holding. The impugned Ordinance, therefore, is in the nature of prescribing qualifications/disqualifications for the membership of the Assembly or the Council.
58. The rule against the making of ex post facto laws has been, in or view, rightly interpreted in America in the case of 'Calder v. Bull' (I) as being confined to securing a safeguard in favour of personal security of the subject, 'to protect his person from punishment by legislative Acts having a retrospective operation'. The distinction between ex post facto laws and laws having retrospective operation was explained in that case by Mr. Justice Chase as follows (page 650) :- "I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rule of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and , similar laws, are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested agreeably to existing laws-is retrospective, and is generally unjust, and may be oppressive; and it is a good general rule, that a law should have no retrospect: but {{FOOTNOTE}}(1) (1978) 1 Law. Ed.
648.{{FOOTNOTE}} ' there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion or of pardon. They are certainly retrospective, and literallly both concerning, and after the facts committed. But I do not consider any law ex post facto, within the prohibition, that nullifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or increase the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute of limitations; or to excuse acts which were unlawful, and before committed, and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful; and the making an innocent action criminal, and punishing it as a crime. The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers and authors. The celebrated and judicious Sir William Blackstone in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor. Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of government."
' Similarly, the ex post facto laws, in the words of Justice Blackstone, are those laws which: "after an action, indifferent in itself, is committed, the Legislature, then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible, that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had, therefore, no cause to abstain from it; and all punishment for not abstaining, must of consequence be cruel and unjust."
59. Mr. Zafar, to support his view point, has also referred us, as stated earlier, to page 126 of the Constitution of Islamic Republic of Pakistan, by Munir, whereat it is stated by the author :- "The provision in or Constitution differs from the Indian provision, inasmuch as the words 'convicted' and 'offence' which are used in the latter, do not occur in sub-clause (a) of the former, though the word 'offence' has been used in sub-clause (b). It may, therefore, be argued that the scope of sub- clause (a) of or provision which employs the words 'punishment' and 'punishable' without defining them is wider than that of the Indian Article, and that laws providing civil disabilities and disqualification for past acts and omissions may in Pakistan, as in the United States of America, be held ex post facto. The Supreme Court of the United States has ruled that statutes requiring test- oath for past conduct from entrants to a profession or calling are in the nature of penalties for past acts and, therefore, ex post facto. It is immaterial for the purposes of the provision whether the past conduct is pre-Constitution or post Constitution. If the conduct was not punishable at the time, it cannot be made punishable subsequently."
60. The observation only gives a plausible argument which may be advanced to support the view- point put forth by Mr. Zafar. This is all what the above observation says and naturally it does not go to support the contention of Mr. Zafar. It is neither the view of the author nor it is supported by any law.
61. We have tested the objections listed above against the constitutionality of the Disqualification Ordinance ; especially section 2 (h) and vis-a-vis section 4, subsection (4)(4) of the Constitution Act, 1974, in light of the case-law cited and arguments advance at- the bar. There is no gainsaying that the Disqualification Ordinance referred to above is retrospective in the sense that it renders certain actions or omissions as culpable long after they have been committed by the respondent but this fact would not render the provisions nugatory as it would not offend the provisions of subsection (4)(4)(a) of section 4 of the Constitution Act, 1974, because we think that the Disqualification Ordinance, for the reasons to follow, does not conflict with subsection (4)(4) of section 4 of the Constitution Act, 1974.
62. Subsection (4)(4) of section 4 of the Constitution Act, 1974, in fact provides an umbrella against what is termed in American Jurisprudence as ex post facto legislation and not against enactments which are retrospective only. The section would not operate unless the enactment is shown to be of penal or criminal nature in its context or tenor rendering antecedent acts punishable which were innocent at the time of their performance. In other words, the mere fact that an act is made actionable retrospectively by an Act or Ordinance would not render the act or omission ultra vires of subsection (4)(4) of section 4 of the Constitution Act, 1974, unless it is shown that the Act or the Ordinance authorises punishment on penal or criminal matters for an act or omission that was not so punishable by law at the time of performance of the act or omission.
63. It should be carefully noted that what the Constitution Act, 1974, prohibits under subsection (4)
(4) of section 4 is the creation of an offence out of acts and omission which were committed at a time when such an offence had not been in existence. But this will not prevent the Legislature from making laws providing disqualifications for acts or omissions committed before the prohibitory legislation came into force. Such a legislation cannot conceivably be construed as contravening subsection (4)(4) of section 4 of the Constitution Act, 1974, for the simple reason that what that section prohibits is merely the creation of an offence by means of an ex post facto legislation out of facts and omissions that have been countenanced before the coming into force of such an ex post facto legislation. Similarly, if the prosecution for an offence could not be commenced without the happening of a condition precedent, as when a 'sanction to prosecute' an offender is required by the provisions of some law, the passing of a law which has the effect in it of dispensing with the necessity of complying with such a requirement would not offend against subsection (4)(4) of section 4 of the Constitution Act, 1974, and this, for the simple reason that what would be done in such a situation, would not amount to the creation of an offence ; but only the removal of an, impediment to the prosecution of an offender would not render the legislation nugatory.
64. The second part of subsection (4)(4) of section 4 of the Constitution Act, 1974, prohibits the Legislature from enhancing the punishment that has been previously prescribed in respect of a given offence. Whenever any such attempt is made to impose punishment which is greater than the one originally prescribed-by law, the person who is affected thereby would be entitled to claim relief against such enhanced punishment.
65. It would thus appear that under subsection (4)(4) of section 4 of the Constitution Act, 1974, only that law which makes certain acts or omissions a crime or an offence punishable as such would offend against the prohibition contained in subsection (4)(4)(a) of section 4 of the Constitution Act, 1974, and would, to that extent, be void. But on the other hand if the Ordinance provides disqualification which is a mere domestic wall to bar entry in the elective body it would not come within the mischief of fundamental rights.
66. We may state here that there is a distinction between the terms `retrospective laws' and 'ex post facto laws' ; in that the former term is applied only to laws relating to civil matters. A retrospective law is one that relates back to a previous transaction and gives to it some legal effect different from that which it had under the law when it occurred, and, in the sense in which it is constitutionally objectionable, is one that impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability with respect to past transactions. In American Constitution law, an ex post facto law is one which, operating retrospectively on penal or criminal matters, renders a previous innocent act criminal, aggravates or increases the punishment for a crime, alters the rules of evidence to the prejudice of the accused, penalises an innocent act, deprives an accused of some protection or defence previously available, or otherwise alters his situation to his disadvantage.
67. Here we may see the definition of 'punishment' in Black's Distionary, 5th Edition at page 1110.
Punishment is defined to mean "Any fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a Court, for some crime or offence committed by him, or for his omission a duty enjoined by law. A deprivation of property or some right. But does not include a civil penalty redounding to the benefit of an individual, such as a forfeiture of interest."
Encyclopedia Britannica, Volume 15 contains the following definition of the word 'punishment' :- "Punishment may be defined as the infliction of some pain, suffering, loss, or social disability as a direct consequence of some action or omission on the part of the person punished. The punishment may consist of death, physical assault, detention, loss of civil and political rights or banishment."
We, however, for the reasons detailed above, prefer to follow the definition of punishment in Black's Dictionary referred to above.
68. Jamalus Sattar v. Chief Election Commissioner (1), another case earlier cited by Mr. Zafar, was a case, as said elsewhere, where the petitioner, Mr. Jamalus Sattar, was elected to the National Assembly of Pakistan in 1962. His election was declared void. This finding was challenged by him in the High Court that amendment in the law was not retrospective but prospective. It is worthwhile to note that the election was held on 28th April, 1962, whereas the amendment impugned, providing an additional disqualification in that case, came into force on the 8th December, 1962. On these facts, the learned Attorney-General did not dispute the proposition that if the amendment is construed to have imposed an additional penalty then the petitioner will not come under the mischief.. The Dacca High Court was pleased to hold that the election of Mr. Jamalus Sattar to the Assembly was valid and would not be bit by an amendment made after the election. {{FOOTNOTE}}(1) PLD 1964 Dacca 788{{FOOTNOTE}}
69. It would appear that the above case is distinguishable from the present case inasmuch as the respondent here was not holding any elected office wherefrom he was being unseated. Jamalus Sattar's case only declares that when a person contests successfully an election, he cannot later on be unseated from the political office on an additional ground (disqualification) which was not there at the time the election was contested. The respondent, before us, under the provisions of the Disqualification Ordinance, is not being deprived of any office which he was holding. The Ordinance in fact prescribes qualifications/disqualifications for the membership of the Assembly or the Council.
In view of the above, it cannot be said that subsection (4) (4) of section 4 of the Constitution Act, 1974, which employs the words 'punishment' and punishable' without defining them, can legally be made applicable to civil disabilities and disqualifications in bringing them within the definition of punishment.
70. This now brings us to examine the case-law referred to above from Indian jurisdiction to know as to whether they can be applied to the facts of the present case. It may be stated that subsection (4) (4) of section 4 of the Constitution Act, 1974, is at para materia with Article 12 of 1973 Constitution of the Islamic Republic of Pakistan (equivalent to Article 6 of 1956, Constitution of Pakistan and Article 6(9) of the Constitution of Pakistan, 1962). The Indian Constitution in this regard uses different phraseology in context to the Azad Kashmir Constitution as the words 'convicted of any offence' used under Article 20(1) in the Indian Constitution do not occur either in Pakistan Constitutions or the Azad Kashmir Constitution Act, 1974.
71. It would be profitable to reproduce the relevant Articles/sections of the Azad Jammu & Kashmir, Pakistan and Indian Constitutions :Azad Kashmir ' Subsection (4) (4) of section 4 of the Constitution Act, 1974.
"No law shall authorise the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission ; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time of offence was committed."
Pakistan ' Article 6 of Pakistan Constitution, 1956.
"No person shall be punished for an act which was not punishable by law when the act was done, nor shall any person be subjected to a punishment greater than that prescribed by law for an offence when the offence was committed."
Article 6(9) of the Pakistan Constitution, 1962..
"No law should authorize-
(a) the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission, or
(b) the punishment of a person for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
' Article 12 of the Pakistan Constitution, 1973.
"(1) No law shall authorize the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission ; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."
India ' Article 20 (1) of the Indian Constitution : "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
72. It would appear that the Azad Kashmir and Pakistan Constitutions are more or less at para materia with each other. In the beginning, the Indian Constitution, in this regard, appeared to us to be different but after giving or considered view to the provisions of all the instruments we have reached the conclusion that all the three Constitutions are more or less identical in meaning though worded differently. They all convey the sense that nobody can be convicted for an act or omission which was not an offence at the time when such an act or omission was committed, and no law can provide for a sentence for an act or omission which was innocent at the time when they were committed and similarly no law can enhance the sentence which was originally fixed for such an act or omission. Our view is that in so far as principle or protection against ex post facto laws is concerned the provisions in all the Constitutions cover identical field. In fact in Article 20 of the Indian Constitution the term 'ex post facto law' has been further amplified. We therefore, hold that the matter has been correctly decided by the Indian Courts to the effect that only punishment stipulated under section 20 (1) of Indian Constitution, is recognised in the criminal realm; and that right to contest the election is not a common law right. We, therefore, are in complete agreement with the view expounded in the cases cited from Indian jurisdiction.
73. It may be stated here that to impress upon us that civil disqualification is a punishment, reference has also been made by Mr. Zafar to the definition of 'punishment' in section 241 (3) (b) (I) of Government of India Act, 1935, section 182 (3) (b) (I) of Constitution of Pakistan, 1956, section 178
(3) (b) (i) of the Constitution of Pakistan 1962, rule 34 (ii) (A), (B), (C) of Kashmir Service Regulations, Vol. II, Rule 14 of Azad Jammu & Kashmir Board of Intemediate and Secondary Education Calendar Vol. II section 4, proviso (b) (ii) of the Service Tribunals Act. The definition of 'punishment' in all the above laws is made while taking into consideration the scheme of the laws which is not recognised by the Disqualification Ordinance.
74. In a nutshell ex post facto law means :- 1st. Every law that makes an action done before the passing of three law, and which was innocent when done, criminal; and punishes such action.
2nd. Every law that aggravates a crime or makes it greater than it was, when committed.
3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
' The condemnation of such a legislation, it would appear, is founded on its inherent harshness and the basis of condemnation disappears where the alteration operates in favour of the accused or condemned person.
75. Before parting with the issue, we may state that the basic principle of interpretation of law is to know the intention of the law-makers. In this respect books and books have been written upon the interpretation of statutes but all of them are intended to find out the intention of legislation. In doing this one must, of course, start with the words used in the statutes but not end with them as some people in past seem to think. It should be remembered that the principle of law laid down by the Judges in the 19th century-however suited to social conditions of that time-are not suited to the needs social necessities and social opinions of the 20th century. They should, if possible, be moulded and shaped to meet the needs and opinions of today because the interpretation made in the 19th century may work injustice.
76. Whenever a statute comes up for consideration, one should be alive to the fact that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the, poorer if it were. This is where the draftsmen of Acts of legislators have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judge's trouble if Acts of Parliament were drafted with perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of law-givers, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the Legislature. That was clearly laid down by the resolution of the Judges in Heydon's case; and it is the safest guide today.
77. In Kammins v. Zenith Investments Ltd. (1) at page 851, Lord Diplock drew a clear distinction between the 'literal approach' and the `purposive approach' and used the purposive approach to solve the question. The report said :- "We see no reason why the Courts should not respond in the way indicated by Lord Denning. The Courts should, in or view, approach legislation determined, above all, to give effect to the intention of Parliament. We see {{FOOTNOTE}}promising signs that this consideration is uppermost in the minds of the members of the highest tribunal in this country."(1) 1971 A C 850
78. For the above-stated reasons, we hold-
(a) that the impugned Ordinance does not offend the fundamental right guaranteed under subsection (4) (4) of section 4 of the Constitution Act, 1974;
(b) that a law creating a new offence, or punishing an act not punishable when committed, is ex post facto as regards to an act committed before its passage ; and
(c) that any law which changes the punishment and inflicts a greate punishment than the law annexed to the crime or offence when committed, or which imposes a new punishment in addition to that then prescribed, as for instance, where it adds solitary confinement to death as punishment for the offence of murder and not any civil disability, is ex post facto, and, therefore, unconstitutional.
79. We now proceed to determine the scope and extent of immunity granted to the President etc. Under section 52 of the Constitution Act, 1974.
' In the estimation of Mr. Zafar, the learned counsel for the respondent, a President, under section 52(5) is not answerable for his acts and omissions even after he ceases to hold the office. This is being argued on the assumption that under this section the President, Prime Minister, the Chairman of the Council, the Federal Minister who happens to be a member of the Council, a Minister or an Adviser get immunity for all times to come as these acts would be deemed to have been done in the exercise of the powers and performance of their official functions. In alternate the learned counsel submitted that the President at the most is only answerable for his acts and omissions which contravene any law. 'Law', according to him, means mandatory law, i.e. Law made by the Legislature and it does not cover rules, bye-laws and notifications etc. Elaborating his point of view he submitted that as the respondent is only charged with for violation of rules, regulations and not for violation of law, the charges cannot sustain.
80. Mr. Fazal-i-Hussain, however, controverts the proposition and submits that despite the omission of the 'definition' of the word 'law' in the Constitution Act, 1975, law' in terms of section 51 of the Constitution Act, 1974, shall be construed to be the law' for the purposes of section 52(5) of the Constitution Act, 1974, and if such a law is contravened by any of the political office-holders, listed in the section, they are actionable and they cannot claim immunity even during the tenure of their office. In alternate it is argued that in any event such persons are answerable for their illegal acts after they cease to hold the office.
81. It is, therefore, in the first instance, to be seen as to whether section 52(5) of the Constitution Act, 1974, gives complete immunity to the President, Prime Minister etc. For their past illegal acts or omissions committed during the tenure of their office even after they cease to hold the office and secondly we have to determine as to what do we mean by 'contravention of law', the phraseology used in section 52(5) of the Constitution Act, 1974.
82. Firstly, let us determine how a constitutional instrument is to be interpreted. It is a fundamental principle of Taw that interpretation of any provision of the Constitution should not be made to render it nugatory. We must give meaning to each word and each paragraph. It is being said that while interpreting the Constitution or any enactment 'A Judge puts before himself the printed page of the statute book ; it is mirrored on the retina of his eye and from this impression be has to reproduce the, thought of the law-giving body.' When the Judges interpret statutes the judicial process I confined to the professed purpose of discovering what the meaning of the Legislature is but, in a vast variety of cases (this case is not one of them), it is doubtful if what the intention ultimately discovered by the Courts, is the intention which animated the Legislature. The fact is, says Professor Gray :- "That the difficulties of so-called interpretation arise when the Legislature has had no meaning at all ; when the question which is raised on the statute never occurred to it ; when what the Judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present. If there are any lawyers among those who honour me with their attention, let them consider any dozen cases of the interpretation of statutes, as they have occurred consecutively in their reading or practice, and they will, 1 venture to say, find that in almost all of them it is probable, and that in most of them it is perfectly evident, that the makers of the statutes had no real intention, one way or another, on the point in question ; that if they had, they would have made their meaning clear ; and that when the Judges are professing to declare what the Legislature meant, they are in truth, themselves legislating to fill up casus omissi." (p. 173).
"The intent of the Legislature is sometimes little more than a useful legal fiction, save as it describes in a general way certain outstanding purposes which no one disputes, but which are frequently of little aid in dealing with the precise points presented in litigation. Moreover, legislative ambiguity may at times not be wholly unintentional. It is not to be forgotten that important legislation sometimes shows the effect of compromises which have been induced by exigencies in its progress, and phrases with a convenient vagueness are referred to the Courts for appropriate definition, each group interested in the measure claiming that the language adopted embodies its views." (Mr. Justice Hughes, in I. Mass. Law Quarterly (No. 2), pages 13 and 15).
83. It would, therefore, appear that the intention of the Legislature is, at best, a convenient mataphor and a useful legal fiction upon which the duty of Judges is to give effect to legislative mandates, contained in the statutes. We have, in fact, to search the intention of the Legislature.
' Dealing with the point Mr. Brohi, in his book, Fundamental Law of Pakistan, at page 561 writes :- "The basic rule upon the subject of statutory interpretation is that if the words are clear, the problem of interpretation does not so much as arise : no more in such a case is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. (See Income-tax Commissioner v. Pemsel, (1891) A C 531).
The object of all interpretation of a statute, says Maxwell, 'is to determine what intention is conveyed, either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it.
When the intention is express, the task is one of verbal construction only ; but when the statute expresses no intention on a question to which it gives rise, and yet some intention must necessarily be imputed to the Legislature regarding it, the interpreter has to determine it by inference 'rounded on certain legal principles.' Then he goes on to say `The subject of the interpretation of a statute seems thus to fall under two heads : What are the principles which govern the construction of the language of an Act of Parliament? And, what are those which guide the interpreter in gathering the intention on those incidental points on which the Legislature is necessarily presumed to have entertained an opinion, but on which it has not expressed any?' (Interpretation of Statutes, pp. 2 and 3, Ninth Edition). The most important rule for the Judges to follow is that the words and phrases used by the Legislature, if they are plain and capable of one meaning, must be given due effect, even though, that course may be found to lead to absurd or mischievous results."
84. In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (I), which deals with the President's Special Reference No. 1 of 1957,.The Court was called upoit to determine the powers given to the President to make adaptations to the late Constitution for the removal of difficulties by Article 234. Dealing with the construction of Constitution, it was observed :- " .. The fundamental principle of constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. As has been aptly observed by an Ohio Judge in H. M. Co. v. Miller (92 Ohio St. 115) the pole-star in the construction of a constitution is the intention of its maker and adopters.
' Another elementary rule of construction of constitutional instrument is that effect should be given to every part and every word of the Constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provisions meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory.
' The next rule in construing a constitutional provision is that it is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode of ascertaining the meaning affixed to any word or sentence by a deliberative body is by comparing it with the words and sentences with which it stands connected and a constitutional provision or a phrase in a constitutional provision must be read in connection with the context. Nasciture a sociis is the rule of construction applied to all written instruments applied to all written instruments. Therefore, particular phrases of a Constitution must be construed with regard to the remainder of the instrument and to the express intent of the constitution convention in adopting it.
' And the last, rule \which needs statement for the purposes of this case is that if there be any apparent repugnancy between different provisions, the Court should harmonize them if possible.
The rules of construction of constitutional law require that two sections be so construed, if possible, as not to create repugnancy, but that both be allowed to stand, and that effect be given to each."
Except for or view reflected in paras. 75, 76 and 77 we are in agreement {{FOOTNOTE}}
(1) PLD 1957 SC (Pak.) 219 {{FOOTNOTE}} ' with the method of interpretation of constitutional documents in the manner indicated above.
85. On the above view of the matter, in the first instance, it needs to be examined as to whether the immunity for the illegal acts and omissions of the President etc. Is available to them and during which period and to what extent? Secondly, it would need examination as to whether the definition of the word 'law' in section 51 of the Constitution Act, 1974, can legally be employed in section 52 (5) of the Constitution Act, 1974, which uses the words 'in contravention of law'.
86. In this respect we should not overlook that the effect should be given to every part and every word of the constitution and such a construction should be avoided which would render any provision meaningless o inoperative. We must lean in favour of construction which would render every word operative rather than one which may make some of them idle or nugatory. It is the bounden duty of the Courts to have the recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode of ascertaining the meaning affixed to any word or sentence in a Constitution is by comparing it with the words and sentences with which it stands connected, and if there be any apparent repugnancy between different provisions, the rules of construction of constitutional law require that two sections be so construed, if possible, as not to create a repugnancy, but that both be allowed to stand and that effect to be given to each. The rule of interpretation enjoins that provisions should not be read in isolation in disregard to the other provision of the enactment.
87. Let us determine the issue on the above principle regarding interpretation of Constitution. For the better understanding of the issue we may reproduce the relevant provisions of the Constitution Act, 1974. It reads :- "52.-(1) The President, the Prime Minister, a Minister or an Advisor shall not-
(a) .
(b)
(2) No criminal proceedings whosoever shall be instituted or continued against the President or the Chairman of the Council while he is in office.
(3) No civil proceedings in which relief is claimed against the President or the Chairman of the Council shall be instituted while he is in office in respect of anything done or not done, or purporting to have been done or not done, by him in his personal capacity, whether before or after he enters upon his office, unless at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him stating the nature of the proceeding, the cause of the action, the name, description and place or residence of the party by whom the proceedings are to be instituted and the relief which he claims.
(4) Except in relation to proceedings referred to in subsection (3) no process whatsoever shall be issued from any Court or Tribunal against the President or the Chairman of the Council, whether in a personal capacity or otherwise, while he is in office.
(5) Subject to this Act, the President, the Prime Minister, the Chairman of the Council, the Federal Minister who is a member of the Council a Minister or an Advisor shall not except in respect of anything done or not done by him in contravention of law, be answerable to any Court or Tribunal for the exercise of the powers, or the performance of the duties, of his office or for any act done or purporting to be done by him in the exercise of those powers or in the performance of those duties : Provided that nothing in this subsection shall be construed as restricting the right of any person to bring appropriate proceedings against the Council or as the case may be, the Government."
88. The reading of subsection (2) of section 52, referred to above, would show that no criminal proceedings whatsoever can be instituted o continued against the President while he is in office.
Somewhat similar provisions are visualized under subsection (3), which gives protection to the President for his civil actions in respect of anything done or not done by him even in his personal capacity before or after he enters upon his office unless at least sixty days' notice has not been given to him.
89. Subsection (4) is to the effect that no process whatsoever shall be issued from any Court or Tribunal against the President while he is in office, whether in his personal capacity or otherwise.
90. It is thus manifest that under subsection (2) no criminal proceedings and under subsection (3) no civil proceedings other than which pertain to his personal capacity can be initiated against the President while he is in office.
91. Let us now go to section 52 (5) of the Constitution Act, 1974. It is significant to note that in subsection (5) the words 'while he is in office' are omitted. Similarly, the words 'criminal proceedings' against the President, used under subsections (2) and (3) also stand omitted in subsection (5). Section 52(5), in or view, deals with the acts or omissions of the persons after they cease to hold the office and provide immunity only to such acts or omissions which had not contravened any law. This means that the actions for illegal acts and omissions committed during the period such persons held the office are kept in suspended animation till such period when the dignitary ceases to hold the office. In the case of section 52(5) of the Constitution Act, 1974, it is not the President who is under emphasis, it is the act done by the President for which he is answerable before the Court.
92. We are of the view that the addition of the words 'in contravention of law' in subsection (5) of section 52 of the Constitution Act, 1974, has been made deliberately and consciously. It manifests the intention of the Constitution. It is settled principle of law that nobody is above law. Therefore the acts and comissions of the dignitaries, committed during the period they remain in power in contravening the law, though get immunity during that period, but they would be actionable after they cease to hold the office.
93. Under section 52 (2) (3) and (4) of the Constitution Act, 1974, the immunity during the period the office holders hold office, it appears, is given to them for smooth and effective administration.
Action for such acts or omissions, if illegal, in fact, as stated earlier, sleeps and no sooner the dignitary leaves the high office it awakes for action. How a law give such a 'blanket protection' to a person who was once a President or Minister that he should sit in 'a carriage of a horse with for and ride rough'. The protection, therefore, is only for a limited period and available only when he is in office. The moment he goes out of the office, and it is proved that he acted beyond the powers in his functioning, the protection comes to an end. This seems to be decided by Mr. Justice Maulvi Mushtaq Hussain `Sadiq Hussain Qureshi v. Federation of Pakistan Rawalpindi and others (I).
Reference may be made to paragraph 20 of the judgment. It has been observed there :- "The question is whether the first sub-Article of Article 248 grants a blanket protection to the dignitaries mentioned in it even if there are allegations of misconduct even after they have ceased to hold that office or does the immunity run co-extensively with the holding of the office as such.
The stand of learned counsel for the petitioner, of course, is that this protection is for life and howsoever heinous might be, the nature of the misconduct attributed to a person who has held one of the offices named in Article 248 he cannot be called to account even after he has ceased to hold that office. In other words, holders of those offices can ride with a carriage and for through the rights of others and the rules and the law pertaining to the performance of their functions with the knowledge that they 'are completely immune from attack. Prima facie this does not stand to reason."
' Again in paragraph 34 of the judgment it has been observed :- "We have, therefore, no hesitation in holding that the protection contained in Article 248 was in any case not available to the petitioner because the misconduct complained of is such as could not be said to have been committed, in the exercise of his functions because what was done was patently illegal."
' We are in total agreement with the learned Judge that the 'blanket a, protection' cannot be given to a dignitary if his acts are illegal.
94. Such a protection is also alien in Islam. In Islam justice has to be administered not only in the name of Allah, but according to his teachings. This means that every one is equal before the law.
Fundamental principle of Islam is that sovereignty over the Universe is God. Two important consequences flow from this. The first is that justice has to be administered not only in His name but also according to His teachings, and the second is that every one is equal before the law and no one how-high-so-ever is immune from the law. Allah says in Sura 5: Verse 51 :- "Surely We have revealed the Book to you with the Truth so that you may judge by means of that which Allah hath taught you."
Again in Sura 4: Verse 135 Allah ordains :- "O'ye who believe; stand out firmly for justice, as witnesses To God, even as against Yourselves, or your parents, or your kin, and whether It be (against) right or poor: For God can best protect both.
Follow not the justs (of your hearts), lest ye Swerve, and if ye Distort (Justice) or decline To do justice, verily God is well-acquainted with all that ye do."
95. During his lifetime the Holy Prophet (peace be upon him) administered justice according to the Holy Book, but since his death interpretation of the Qur'anic Ayats was naturally expected to be the most accurate and his personality also reflected the Holy Qur'an in its letter and spirit, his decisions became precedents for the future and what he decided became "Ahadith" and ranked as the next most important source
(1) PLD 1979 Lah. 1 ' of Shariah law. He was famous for his impartiality. Even non-Muslims brought their dictates, treated everyone as equal before the law including himself and gave equal protection to all yet he never claimed infallibility.
96. The Holy Prophet (p. b. u. h.) not only did not consider himself to be above the law but also sought to establish this by his own acts and precepts. He established the important constitutional principle that the Head of any Islamic State could be sued both as a private, individual and also in respect x of his public acts. During his Last Sermon at the Hajjatul Wada the Holy Prophet (p. b. u. h.) in fact, testified to his love for justice and equality by publicly declaring to community that if he owed anything to anyone or had misappropriated anyone's property or had done any harm to anyone's life or reputation he was present there to pay his dues to whomsoever demanded it.
' So is said in `Mishkat-ul-Masabih', Vol. 1V at page 252 :- "If I owe anything to anybody, he may claim it, if I offended anybody, he may have revenge. In response, a man named Sarf claimed some dirhams which were at once handed over to him.
Sakhar was a Muslim who accepted Islam after Tayef was conquered."
' Hazrat Muhammad (p. b. u. h.) shortly before his death when once he had appeared in public he had said :- "I am a human being living among you. Therefore you have certain rights on me and I on you. If I have caused any physical injury to anyone of you, here is my body to receive immediately such injury in turn. If I have caused any financial loss to anyone, whatever I have is at that person's disposal for compensation or for forgiveness so that when I go to my God I should have no burden to discharge. And if anyone has suffered in any way from me I can only pray for him."
97. The immunity clause, it should be remembered it is an accepted principle of interpretation, is to be construed strictly. Unless persons claiming immunity come strictly within the terms of provisions granting immunity, the immunity cannot be extended. This view prevailed in Ch. Zahur Ellahi, M. N. A. v. Mr. Zulfikar All Bhutto and others (1). It has been observed in that case :- "The immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law."
98. It is worthwhile to note that word 'immunity', used in section 52(5) of the Constitution Act, 1974, is 'subject to' the provisions of the Constitution Act, 1974. So in the first instance it means that subsection (5) is an exception to subsections (3) and (4) and relates to the period when the persons mentioned therein cease to hold office. Secondly, the contravention of law, as would be discussed later one, means contravention of law stipulated under section 51 of the Constitution Act, 1974.
99. On the basis of the above discussion we are of the view that (1) {{FOOTNOTE}} P L I) 1975 SC 383 {{FOOTNOTE}} ' immunity, and that too in temporary nature, is allowable to the representative office holders only during the period they are in saddle. During this period the action for their illegal acts and omissions remains in suspended animation and no sooner they cease to hold the office the acts and omissions are available for an action.
100. The next important question which falls for determination is as to what do we mean by 'law'? It is significant that law has not been defined in Azad Jammu & Kashmir Constitution Act, 1974, nor it finds a place in any of the Constitutions of Pakistan. Existing law of course has been defined. It is, therefore, legitimate to know its meaning from other laws.
101. 'Law' in the General Clauses Act, under section 37 (b) is defined to mean any Act, Ordinance, Regulation, rule, order dry bye-law which-
(a) before the establishment of the Federation of Pakistan had the force of law in British India or any part thereof; or
(b) after the establishment of the Federation of Pakistan but before the fourteenth day of October, 1955 had the force of law in Pakistan or any part thereof other than a Federated State; or
(c) after the thirteenth day of October, 1955, has the force of law in Pakistan or any part thereof; but does not include any act of parliament of the United Kingdom or any Order-in-Council, rule or other instrument made thereunder.
102. Here in Azad Kashmir, section 51 of the Constitution Act, 1974, talks of laws, bye-laws, notifications etc. Which were holding the field in Azad Jammu and Kashmir prior to the enforcement of the Constitution Act, 1974. In this section, ordinances, orders, rules, bye-laws regulations, notifications and other legal instruments have been equated with that of law.
103. It would be advantageous to reproduce section 51 of the Constitution Act, 1974. It reads :- "Subject to the provisions of this Act, all laws which, immediately before the commencement of this Act, were in force in Azad Jammu and Kashmir shall continue in force until altered, repealed or amended by an Act of the appropriate authority.
Explanation.-In this section-
(a) 'laws' includes Ordinances Orders, rules, bye-laws, regulations and any notifications and other legal instruments having the force of law; and
(b) 'in force', in relation in any means having effect as law whether or not the law has been brought into operation."
' The bare reading of section 51 of the Constitution Act, 1974, would show that under the explanation
(a) ordinances, orders, rules, bye-laws, regulations, notifications and other legal instruments which immediately before the commencement of the Constitution Act, 1974, were in force in Azad Jammu and Kashmir, are given protection as laws. We may state here that the charges against the respondent relate to the violation of one or other of I these laws. Section 51 of the Constitution Act, 1974, thus gives sanctity as law to bye-laws, rules, ordinances etc. Violation of these rules, ordinances etc., therefore, shall be considered for all purposes as the violation of law.
104. We may state here that on the question as to whether a 'notification', published in exercise of the powers vested in the Government, is {{BLUR PAGE}} 10V CHIEF SECVFONA(Aypp..11r,,,,M0qp..4 AINUL ,,,-. ,-,-;SbP(4,?1,4624141 ' QAYYUM KHAN (Raja Muhammad khuiShidlaan, Acta.: .1)* -- ':- -- .aRNi)isq ',tit .i. - '.ivoltT wfi lb ,..Vt,;:.;-. ; .*.,,,,,I. --tri :u , APP1404P4,Allit* i4P ti944.4176:-.,-c0104043tigiOer#1,, a 07 p in lizr.: Mathurailas alias Mailitircipraidd.v.L-4* 0::)'404c' ' (00.-,v., , k0).
The cnnflict,bowever, had been set 'era( by 'Vie-Weds-1On- t-the''Staiiitine tiii-Rt tiflnL4/4044 Mill3i3d.litiL44,srattof kjmertaYi which ; that; thak=a notifi- ciitfit iiihtlyidatilitivigik attietinedinIseetinsi3B(374h)-nlIthlifilennaliCleases lnik2t."
Piimfh01.1htekveitetten the (*int,: "I I to yi',Valcutchtiiid .441)i *the zitior ultiiiiiii MbiaiiihtitinedliWereireVie0md,liindliit was'..Beld.:thatint notification' 151iiitias WAT*41bioinitnetii it1i,6xettisendfictbeepowers.Delegateditoit under ((.4,ietiiSia1,1-.'LEiienliiil. SlippieflOimpniaqi Rowies)
IA:040494C is,an.`orderi Mehtti Lew thiefficiele.;ait ggiiii in:016%000n Jis(3/414factht General Clauses 1.
4stAit.a.Nopf.,ri ion ei li li....Di ai i,A,:-.-voisfs si .c.Rls OA .Nolig.sA5 arna pdi 1,,,,111;2 ii....u3a2.33f.,ti blvow naii:-..oE1 ',Irso 3i L. 1(, . . e(s las 40fonnTiseire appears to .;kg p,, of 2w4doinoi, _.'.n noit otay. Constitutional riptovishin4.
Gligtrdinaloge414.41C4o,-3b vihltif343d9i cif9g1,0a.POPs 04,, helding the ttafita.:,priar .40234eC011.110444k)14,*4.1174, . ral4 ....,,P4:1;F144ve,iPP19:Savdd and -_given the '..atatuSi#44%.4c1.9.fuSi9A NO.3 .gPt and,, 4444,RtiOniitivc:110 ha'e been anomalous as lot many of orders passed, actions i, ep.These ordinances etc. Could hardly be. Construed ' as. Legal. ,To aviod t is unhappy situation, it rp.PeafiV thes--teghStatureiAtitidet'itetiOnw5r oair theConstitntiow:Att, 1974, -.DiNetrthottghtto protect them as iaws tif the land. Eiiti enolilivosq aer"
106: 'Ilietetiii,'"I`he'-Viniti liVi4iiiPleitediiciai,taistiotilT.:.52(5)::,:of the i'mCnnSaUtinn5At(019741wiluid 'not Inalyilinetarb WEActoc9f404,44islature, 03,,Immv,a4f.Pereseditin 3:(74) Sof:Abe:Ts GenetrAk iClausegi 43 444 sect 0* P I of the Con stitntle it *4,19140 is duranickgalseesincluideAkinilesfykrklaVil9ickii and -ernOti tiOnIketaoit,WthATRLF141)02094,, 4 '9,AIR'vjRn4j114(f,7,. /14.'ftiair, g4 Gupta a ewliii-TO-ditiOgitirivioriligify,-coviticPf AiirAirlztft .41 I -.Afft`P 1 -1:Z.d.1.`i_i'Mt -tle"
1 g ,ts,flobatnr90.319144at ailt. (41 E.2 rintti...)e of ncsitsb.s rti beSq,':)Tssi: 3Ci, Ti ?i. ..,c:A.? '.Lq-:":''`'
01/41(tie'?-86sektlefirfitili:-)thil plirag I !Indian Law' .f as mentioned in para:1776118P the Yiiiialgatilittib&h-tidefiLincludtslinot: -.,tinly. An Act of ni bt)v;inic4'\,4.1,e8A.143i5yr...i.,11L109,ia,JA,Lpit5_siihyelalznd, ord!If:, or notifications -Ihrni bw1.441RA4F11.1-ffclfitil.Plif fise:mvb,k)49F1.tillifrrlawc961. ,, ,--- ' . 10_,, ,-, 1 71 p'D .r ::,...0 fIC.0:):)8 grit .1 Afil"r EffaiiiiR3ev.04yieb6lbviiiiiieni,.Of SakiiitittOlt,,th'eirgtig,,sliitO by ''fMr.Iliara Piti the citiftimitiviiesIbt thi4LeanOr notitelevantp.Init,thismgq4.) In ,'''' thatleite'd11146'Viifi thil iitintioVeritylatisagn1433, ikhas been pbserrciii Dbivoin w e.In sAL riom, of bflEi'' ''sfe ' ' . -}"' '' ' ' ' ': , ,-the - ' , ' "it is a so clek 'that the did itutton' s ecifiaallfsed.- 'terrtiNttles' as e a o sir l distinct from 'law' when it refers to rifel,Aefoitinitificeiiii -A M& 178. i bonolinxtrititiFitheretoteilichiain(that:,the rules male., b8tiXta9 President cannot 5tij., 01010d bititegatded avla*,Withituthelineaningof *et gy eoliilgi-' PliF4a,eMPIPYed 115fit boiloin Altiold 234 10),-1 and .-1 the ilterirt.Fflaw!... iiaaBthilitepntext must be under-'war *rii Isr4.0d,401theannsitegispative;.) enachnbnuf,eithgri Ekltr_Act of the Centtal or b5int2tio!) the Provincial Legislatute,:ioriltn 3OrdinancOd0:80.4;the President or ,I.A noilitlierigiJvertiOtloagie:pie caser:mok=bewoifiu@theP w9xckszitl3p:teinu and condition guaranteed by Article 234(1) of the Constitution cannot be need earl ,fabaidgeit byltniesinitgpaplea.,04'45nies m115% ..Ftlso be,tagardediS law Dildon. 10 ffstivIttiroPtirAosP4taailqq.Sehra liiiliW' 114 IonbacrseirriAid.Ics-t ts_a -i2e7q ea ffritooktwoahkappear Mist "the-above -Wise 4S4 aftliffiteRIWAYftIP once-0 to the facts of that case. In that case no such P.Riffitcgrfv@Mfet*.iO4 ted D othlAndex) ref.OR, 51 RE thqappijtil#0,..,kc!.3 1974,,it appeam, were vat able -.), le u .... ,,, dr, ..f, noosim 2.4 .Ao. b{{BLUR PAGE}} ---(itikikal * p)g'f Nai.,2961w5e10 Lire 021R as ,tAkiltbiteriX63141Akkati I'l"71. 1"--)qtj3rA' I (I4. 495teS eiltb evitgineRairmi lo 15b;(40 4 LIPE 0044i f4 145 ""q""?' ,Vidie140Rit 16910 atliggil ?51-)fliWli'' Pit 0,19riactib.:1.8 ilibiw fet MThillitlibtafira TrilliW ,rnaitoopri ,inkl ovf.:1 4,1addoi {{BLUR PAGE}} ' and naturally law was interpreted in view of the provisions of the Pakistan Constitution, 1962.
Which, on the point, does not seem to analogous to the provisions of the Constitution Act, 1974.
108. During the course of arguments, Mr. Zafar, the learned counsel for the respondent, while making a reference to Maxwell's Interpretation of Statutes, 12th Edition, page 279, submitted that a 'word' will have different meaning in different sections and therefore it cannot be said that the word `law' used in a section must continue to have the same meaning in the other sections. The position built up by Mr. Zafar covers the broader principle but it cannot be of universal application. The rule is not so rigid as not to' admit of any exception. All that it conveys is that it is not necessary that the definition of a word in one section would necessarily carry the same meaning in another section.
But it does not mean that it cannot at all be construed so. We, therefore, could not persuade ourselves to hold that theF meaning of 'law' under section 51 of the Constitution Act, 1974, cannot at all be employed in other sections. All depends on the intention of the Legislature and the scheme of law.
109. Section 57 (1) of the Constitution Act, 1974, which reads :- "The provisions this Act shall override and have effect notwithstanding the provisions of any law for the time being in force.", also supports or view. Subsection (1) of section 57 of the Constitutions Act, 1974, make the provisions of the Constitution Act, 1974, operative even to override the provisions of any other law for the time being in force.
110. This means that the 'law' as stipulated under section 51 of the Constitution Act, 1974, which also includes ordinances, notifications-bye-laws B etc., is to be accepted in relation to section 52 (.') of the Constitution Act, 1974. In or view section 51 of the Constitution Act, 1974, is the express will of the Legislature so far the definition of 'law' is concerned.
111. In view of the above the words 'in contravention of law' employed in section 52 (5) of the Constitution Act, 1974, shall mean law as stipulated under section 51 of the Constitution Act, 1974, and also section 3 (37-b) of the General Clauses Act. The argument of Mr. Zafar that the words 'act done or purporting to be done' used in section 52 (5) of the Constitution Act, 1974, means mandatory law, therefore, does not stand to reason and fails to provide a correct approach to the issue.
112. The upshot of the whole discussion is that the persons mentioned under section 52 (5) of the Constitution Act, 1974, are answerable before the Court of law for their past acts and omissions pertaining, to the period they held the office if they have been done in contravention of law ; and the 'law', stipulated under section 51 of the Constitution Act, 1974, shall be construed to be the. Law for the purposes of section 52 (5) of the Constitution Act, 1974.
113. The respondent, under the Disqualification Ordinance, has been charged for his misconduct in 'wilful' misapplication and diversion of public money, favouritism and abuse of powers, while he .
Was functitoning as President of Azad Kashmir.
114. What is 'misconduct'? Misconduct, under section 2 (h) of the Disqualification Ordinance, as also said elsewhere, is defined to mean :- "In relation to a holder of representative office refers to conduct after January, 1970, and includes rigging of an election bribery, corruption jobbery, favouritism, nepotism, wilful maladministration, wilful. ' misapplication or diversion of public money or moneys collected whether by public subscription or otherwise or owing or having in his possession or- under his control, directly or indirectly, either in his own name or in the name of any other person, any assets, pecuniary resources or property whether within or outside Azad Jammu and Kashmir disproportionate to his known or disclosed sources of income, and any other abuse- of whatsoever kind of power or position, contravention of any of the provisions of the Ministers, Members of Assembly and Council (Declaration of Assets)
Ordinance, 1978, and includes any attempt at, or abetment in respect thereof."
115. The very reading of the section would show that to hold a perso guilty of maladministration or misapplication or diversion of public mone it is necessary to prove that such an act was wilful.
What do we mean by `wilful'? The word 'wilful, when used in a statute, connotes different concepts.
In certain cases 'wilful' may means 'wantonly. In other cases, it may mean intentionally, or deliberately and still in some cases it may merely mean consciously. On the point we may quote here Kedarnath v. The State (1). In this case it has been observed :- "Section 405, I. P. C. Defines 'criminal breach of trust'. The second part of the section says that 'whoever wilfully suffers any other person to misappropriate or convert any property, commits criminal breach of trust.' Hence wilful suffering makes a man liable. Wilful' means deliberate or intentional and not accidenttal or by inadvertence."
' The word 'wilful' is defined in Black's Law Dictionary as an act done with stubborn purpose, but not with malice ; act done intentionally, and knowingly, purposely as distinct from one done carelessly, thoughtlessly, heedlessly or inadvertently.
116. 'Wilful misconduct' has also been defined in a case reported as (1952) 2 All E R 1016 to mean :- "It means misconduct to which the will is a party, and it arises when the person concerned appreciates that he is acting wrongfully, or wrongfully omitting to act, and yet persists in so acting or omitting t act regardless of the consequences, or acts or omits to act with reckless indifference to what the results may be. The same act may constitute negligence in the absence of any intention to do something wrong, but wilful misconduct if that intention is present."
' It is in this sense that the word 'wilful' appears to have been used in the Misconduct Act.
117. ' The word 'wilful', it appears, has designedly been used in the Ordinance to express the mental attitude of the law-givers. The word `wilful'1 is a word of description. It generally describes the act constituting an offence. To make out wilful default three elements must concur :-
(i) the doer must be a free agent
(ii) he must be conscious of what he is doing or not doing and the pro bable result which might arise from his act or omission ; and
(iii) this default may range from a state of mind all the way from suping indifference to conscious violation as a result of deliberation. It is thus manifest that wilful default is indicative of some misconduct in the transaction of business or in the discharge of duty of omitting to do {{FOOTNOTE}}
(1) AIR 1965 All. 233 {{FOOTNOTE}} {{BLUR PAGE}} 1444 akit 1, alt) ;4, JALL4Ai*ttictsolw .2 lAMOL. Zailin 7,, ..: , . -, o..,i,ki! ,In7-,,:4,2,A \-:.,..,,,,s,riv,,,vlit v.:'cSi' v.,,i1)1. IvIti'ri .0 a something either deliberately or by reckless disregard of the fact whether act :1 or. . Omissicar was ; or..,:was not a $reach folfi-,,tioty ; This view moiled in `Bogikd M. Davay 7.; 4.ukicSubizonania lyete ikike a has.,Alecn lobstived in that ease ;1,11j. 61:: V:1,1;4111) ,t0M:C..:j zit! -.1.-31.)cw lo rgoii!.;)Uog ?,...;i111Wilftit'dailiiiiPtheittolie lilindtbaticiof 'of Vtimeinifictifidikatiti . Eki ttitnsac t`Itlaiiiir busiiiiisgalfi theAliktiffelor duty OrivihRtiti#46416(tome '''''"'itiing:kit4eictietibeYateldilif fe6kteig'-'disi*afif-43f itht Net oNVhethe lovv9alkiaefi* Oliiiiiiiii*asiar *atiltidt iit'4reitelVtif dtity:tin, IQ ':531116.1e ,ilitil1.4Td;.::i ' ,ill:.i..11c):Ki tiO .1J ,,70,1 ACI.Ailt-v5vr,i pziltitet c. - d ..i.b SC, he true anp.p.g....Ann gleaning ,o,iii t Id 7 w, ,,,, A. Usse ,.1,vo ShoW that igegaTarid,tgAurar444% ireilkOja gyjti`dzAllegal if is defined in Cisbotii'iCiinciia Law D`RtionaryWitean :-- ' =,.,1.(75.13.Iil 1, <p.c.!pagfilidlaigful> . x 4.:.:.Rdnin.i.lativiegLuellisrgeivgeanr,dini;i,i', pi oaryinAetinetsoin_aotr. ,.Hreectiosgsniiyese;nia:4:7anpab,illle.e;g If : g oi y:ni ns gi d ;rte :: 1 `110t) 7rightkJ:) Thus i. At., contract made uhra Irbil!: is: Void; but not illegal-414'1 ass: andthe payee= cannot: ue.' therecati hut in.Ismotiillegal)to give5the:5cheq CI) ,y...0epaYIhelost ea:MA Tv-21-; ,,,,t,,:,; Ii.) yLoi 5v, -.;fliCiq Wil tiO ,Iliel,K,tiz:? . While in the same 'dictionary irregularitybigvetfted5t4 hidhni Pew. ?Ffit bncAlTbe5aparliiiielftc;h1 biii.: tetlectofilthi.Pleiter:- forinafities,--- 4* X.T6tiiii *tiro 'titWediifeilTlieyliiiii3t. Bil'WeiVercr'LWin'coitChteite. Rticyy. Lherdtlitepatty, o trir-"ricet111441$3elit r:ICauttibiipitynidttt oTtOrit*ocy4asietiedirigq 1321in 0 flil,,,,, :-,,,,,,,iif ;Ili .Rif,,,,ap.A*- ytripikoitzikcjitci8liofiy'"iVstinlitio iiieyirifegula but every irregular.'-avi ca not be considered idifieietifiligf 6iie).4f."
1 oi.;1,.., 4,1:,, , 2,6,-lo.v3eici pi_rle.4.)Liii 1,(1 batint.4. 4i 'harp'? Bin cloinuo44 I 4tl%z'essw ',i:)54Ftfelffli'PcCine9iilck4t1M/if,Pc fi its , o, f5W., .13P,Mst?!,AoinActontagMfm *Iii iem 14 one can allowlan tner to do a thing, Wilful misconkc4. I - uN 4 ,,ictlippFY,F9Ftp FdipolltpthlYolunie,) at page,,p18; IS de e in4ai, ;- I/ m.; t"" . Fi l ,..Al too..P81fti 2.
"Wrong conduct, wilful in the sense-01114)0W friteficrikg tilt iliiduaed fiwiw by mere b9oss,t- fftrgetfdlAwsSicir litinignit'Aniga1504:gfloAknitOtAillopnt to Io IwittiAlloiliswa4ust% Nyhadis emitMaly byamtnmjscipA491Vjos mis
91. Gul.QOAKtur4 ;c16ki3Yhich 4110 ieWilig ittAhpirSzLik-,iiteilklmiwtOigkoppsed to . Riftw itcPidAntilfOr.,nCgligelAt ; the ,Xtlist:41t*Stf .ititn4the404441.1. sAtogkust b KEITS :iii&C wit ---r-1 t.Eii z...Thign alit 1,-riw oi exml6flitaii a?!.)1;-,ei.
" I i/V iiiiiet0iiikbf big_ isi it$ .aifailiAleisnitiaike4VAchiet as defined under tee r iViii&olidiidibiliinaiiidei' ti&iiiiilike"d'iSildficeilliviieither .ivirtiirdi9flitgve6ritfavitritititi afiliim; blow silt .Imil ozna eith tai ai it view loubao:-.1a11,4 1t.Riitt view pf,,,,thcinA_bove, we arc, of .Tile, considered, vjew tnatr an act or "jliMPnt. *ill! :it se -,30:114*??I`ftn'tiritut. . Wfieni ft . I ' '48-nettarsOcSittitty or, ile*,ratlycearp iii b-4.
Faiitow, 0 aft ' t ,', 441ifEtlfiitiOar# ' fir iii ,46n tort- 6 ivisigia Atli E5.0i..1:::.n x,,,knisnwg- , mol (111320.) IO .310W L 81 r"
121. For the ith.,,tioq 12Lifil 81114113Sh3 andI lififilfAliiiillyi luo tdc-tn -t- we nave taken a the Anatter joetore the re_p ()I:Lawn ardar Muhammad Abdul Qayyum Khatil,lbial-tedohd&d181'nlikiinduct hi' tiiiitifiptitatfiSitoa0 diversion ofivibliti nioittOp it InItigt;be peotfedn-411 (k9 ..,I IV ; 1-101X2M10 10 J::)/:,, ay! Aloft :Rrig..Ingifri ii.Jiliv., lipeD-1 eitivi hic04411.
41111.4PPUei4,19017,3e1;44ath% RiPile4Pflytira Iiiitlth zicit CO (ii) theititheitiliatiplitirdisamorcdivitsioniwav 'Svalfuk. Of eaneietibni ri,b.i vf..)b al *titik now -4 Wtif#14410106400 #16 V311t ii413ilftrO ' IL OA I. 4 8e. . ,.. . ,t0i e 1. I a ,..,t{{BLUR PAGE}}
(1) EALI,V1.0244414.4i4) i901-_,'._, . : ..PaitF SECY./RgigtAMPWA4 44PM;ABktiie a a,.(8J1,4,..,IC.Ei 010' {{BLUR PAGE}}QAYYUM KHAN (Raja Muhammad Khurshid Khan, Actg. CI) .
5.=;c, '...),:.:ii:p.-2.-:(! :..,'.:,:.:;;.- of T cpiiacilial iteqtfired,)111i,the cases under the pi..5040004,: takwice ?
Whegser.:., standard of :pr4ef ,,required . In a criminal I qase,..)#q4 :004issisted upon or evidence of the nature required to prove acifact jg,aielyijpasewould bethslepk requirement. . On,this point, Mr. Zatarpr:the learned eoknsel for the:iertOoAleAt, has - cited 10' ltieWtoriifylefigk70040:1-4470nAiin of Manidor (I :Artqr-gOing thrigliifie facts the case and 'Osiiq'ditic'd*sider. Ed thought we id" agreement - with the'1W iiiiitdated"iiiiiiii-kite tha the proceedings Ainder: Jae I DisqualiaoatieWigrdinektWe -0079f criminal natuipl.- but in or view the standard of evidence is not as rigidlesdisloeingissisted up,9-A,11,161in#Pal cat. :#cwevo,.._ a person under th0 Ordinance shafi!
Be PrerAikTf9tV fj44R901).,14ti1:0.0:,O.Idence :,,..Against.i. Him i100 or og.,'.-fulfils the[, stapprktprkO,# criminal bases. ' ,,44$;s0 bca064o:40144;p: s as disqualified1;:0ost.# prov0 that Ieslujity of misconduct 1004 3cion otttOp*;T4 wotItitir-is at le*:101c040:thaJ1fact that the standareofiriprshotrd'1e -.. akin to the standard ',.,6();tog, 'required in criminal matters. Besides the proceedings before the Din- ttnyipinr..; ?To Tribunal, ._,$tip.,,i)00 under :41*00:tiPArar,),Pf , sO11,:0 11P6.-. Is411.7 fiaii4CPt4,40c0P`r 'qr,:.k.t.A,i041*;.:4,iW,, ,f,"'",:tcir - the'4 Isc53 above ifik la ci -ail tia-tE` "ii "tair'titled". S*dtaat 3.16iiiinniidd'i' cistn,-_,hein:iil Chief' Secretary' (Civil Appeal No. 52 of 1979) decided by this Court an I S10.4i9191'.:.Ihif ifirittifiti of :OW before the Tribunal would, be theriiiiiired114,1e,',4*.Ft?Caie,,iiiends teitteyvtdil?Crj u -.5e1 f 123ANTtlettiS,ift tlwiiceperofipRoai.paSUgh )11144Ker4,54A,ppe one hasilwreOly appreciate the evidcpce ,4,t4iif ;,..Tjhei....0preqatiqn)rpf the till Court itilort4:1:wkiglY-,b4Arigil 04 040;(1..FtR4o0.1kholl44.qq9citlie,,,AY kJ efiglici_ finding cannot Ebpitlitergfintitliothfreilfe 3i votigilvisicwillaq, @EiYftt)c#40e, , approach of 4bkcourt:4*Atry ft isnq ismniarosriostAhm.B.4%k* it Mt441# will 1 ttit misafirrigiVtd)CiLlAtisp4fickfl ILfit WO 10 f?.Frii...Inilq io.f1:.)f-risbrzili tilt 10 viildoiv FA iTiiiiiiy,Wovo4e t6eWiti3iltheoiliest1tOotl(ilielfikiVelifolititiribti dci4e ,tiikoeh4tieivogivithi.1 bcimitge tkik pikiadsipbrioqael otfr .11 bnopd og ... P-fr..o.,-,rpo-Kfroi).T.-50iloo hoz bt)ror;11 3g:terfri 3r11 ic,,, zellfg - VI vl ,eAT,lig fordariAwhitmop411 .A141tisaonewk. Kt1on-,Affrfoic40 of *C *ombhtoimitIa4114"glmiciAil*iniA45/4t tauthority.#0 iii. Crige,g41:4,19tt . Prevalent rules and regulations, sanctioned a contract of sale .Fgljggsfaii extracted from the AzadAesIliimirrfoscst s,kyocke X9FsktINkepattljent, worth rupees one crate-, in "favinie'of tAxad- W`agifthir Rogiri and . 3 03bierticOnrnif6,MiW1-tdPtAtedt:f Iiikritfriiicitia TANK -CID,G;vki6iiiinad ',UP 1 (Lii(Sfnittlifa1elitild catinli&::iithe-is,:stii digtitittlits Obi-4441446v vide Order wii tNo 1 topstaated 2174z19/5 fand-41nikiIttej Obverithellt Watitliprived -flaG 2444 income tiindudfifit tolittlyi*ciP'tntieetartol lifilduA 1-1P,A ba,,,,iit 2iii y,d- itmwo ;;:zw ft.)ificv .t-A.,, Eiiilvl zglitiqn.Cf biti; fileo51 -lift TbAJefigtleiiiT0Mrilki Pitti405#14491b1Fa, Ari-,g, 81.NkqMr& iillt94OataSstands '99,119A4 2.Fivi tiz-Adw ,ii IL-,K; has niatn .,1713 1?,,Elix:5 oi noinianlq eid) iblit CO Erioi1251 lekccfati14.414ussain,dhld lialt Cal counsel.' forliao oppel1e.14,3,) {{BLUR PAGE}}fissailed the finding of the Tribunal, inter alia on the ground*, cri4 -z:,.Ri) oi ev.:Igin (4 that that wridepse tendatedtivtavesithetithe r.Ealiiandentibastallewed itiatallaki -. . Tion of Rosin and Turpentine Mills Ltd. To,Oatint:Zifathandlethersit tioqqtr5lPite strong .Objections *.f.s IgI,k)nifc;fricilier S9Plerv.OT of eildel P 06qt49 ' 1.41wirelli - and as the .4.Rto .0. ..Cto.
0010Er;iworia linked C iiffP4041.74,1i_ fit T!.1 , 6 ir, Ett no 0:-.,..t "vh , IR,,,e4i.J.44,1111:91.--,,aktrct5 2., . -.Case -41 9, tw .Thein .1114}.5Srmstiltri c .4P ti bd.). :1:13rii oq :Ai no aw,,, 50E63 ziat notrient nieborn a ;', lokeila147A10.4Vit IMIL1144Z.t. ,tzobiet,,-,a t.Ith v-.1. Bowolis {{BLUR PAGE}}
(ii) that due weight has not been given to the documents produced before the Tribunal which were sufficient to prove misconduct on the part of the respondent within the meaning of section 2 (h) of the Disqualification Ordinance ; and
(iii) that the order under the Disqualification Ordinance is of administrative nature and standard of evidence required in judicial matters is not insisted upon as is done by the learned Tribunal in this case.
' Arguments listed under (ii) and (iii) above were also sought to be read in respect of all the charges.
126. Before we go to determine the merits of the arguments advanced, as said in the earlier part of the Judgment, under section 4, subsection (2) of the Disqualification Ordinance, the Chief Secretary or the Officer, as the case may be, when he decides to make a reference to the Disqualification Tribunal, shall notify this fact in the official Gazette. This procedure is mandatory and does not admit of any departure. It would mean that a reference would be valid only in respect of those specific charges which are notified in the official Gazette. Nothing beyond that can be legally taken up against a person even if such a fact appears to be a misconduct under law and evidence also supports such a fact.
127. For the above-stated reasons the argument that for the installation of Rosin and Turpentine Mills ' which, as claimed, was very much Iinked with the sale of resin to the factory and which was installed on the order of the respondent despite serious objections at the Departmental level the respondent should be held to have committed a misconduct, cannot be accepted. How a person can be condemned for an act which does not form basis of a charge or about which he is not called upon to explain his position. If we do so it would amount to condemn a person unheard and this would be violative of the fundamental principle of law that nobody is to be condemned o unheard. We have, therefore, to confine ourselves to the charge and cannot go beyond it. The respondent was only required to explain his position in terms of the charge framed and notified in the Government Gazette. The charge is what it speaks and not what it ought to have been. The evidence, we therefore, on an aspect beyond the charge shall be construed to be evidence in vacuum.
128. The charge contemplates the following: -
(i) that Sardar Muhmmad Abdul Qayyum Khan, respondent, as President of Azad Jammu and Kashmir State, in violation of the rules and regulations sanctioned a contract of sale of resin to be extracted from the Azad Kashmir forests worth Rupees one crore in favour of Azad Kashmir Rosin and Turpentine Mills Ltd. Which was owned by his friend - Ch. Qasim Zafar and some others on the basis of negotiation; and
(ii) that this permission to extract the resin and sell it, which was accorded ride Govermment Order dated 27-2-1975, has caused a loss of millions of rupees to the Government.
' Both the above ingredients of the charge are necessarily to be proved to sustain the verdict of misconduct.
129. Let us see whether there is any proof to that effect. To support the charge, Sub. Major Ch. Fazal Ellahi and Mr. Abdul Majeed Sulehria, Chief Conservator of Forests of the time were examined as witnesses. Some documents were also tendered in evidence. The brunt of the evidence on this charge was on the point that the Rosin and Turpentine Mills Ltd. Was allowed by the President to be installed in private sector in a modern fashion instead of public sector as against the proposal of officers of the Government which fact establishes favour to Mr. Qasim Zafar, who belonged to the political party of the respondent.
130. There is, as said elsewhere, no such charge against the respondent. Naturally evidence in support of a fact which is not subject of a charge cannot be read against the respondent. Here we may say that the record shows that even installation of the plant in the private sector was allowed on the recommendation of the Forest Minister. The evidence thus fails to substantiate the charge that the contract worth crore of rupees was sanctioned to Qasim Zafar which resulted in a loss of millions of rupees to the Government.
131. It is correct that the resin to be extracted by the Forest Department was contracted to be sold to this factory but the rates were only allowed which were to be allowed in a factory of the same kind located at Jallo in Pakistan. Every precautions, it appears were taken so that the Government may not be put to any loss by sanctioning the contract to Mr. Qasim Zafar and others. Nothing, therefore, illegal or against the rules was done by the respondent.
132. The learned counsel for the appellant could not convince us that this contract was given in violation of any law or rule. No such law or rule was brought to or notice at least. It was in a meeting of the Council attended by the concerned officers that a proper contract came into being. How it can, therefore, be said that the contract was the result of any act of favouritism on the part of the respondent. It may be stated here that this factory was the only factory in or State to make use of the raw material to be supplied by the Forest Department on those very rates/price on which material to a well-established factory of the same kind at Jallo (Pakistan) was supplied. The learned Tribunal, therefore, has not committed an error of judgment and in or view has returned a well-reasoned out finding on the issue and we see no reason to disturb it.
'
133. Mr. Fazal-i-Hussain, also submitted that rates of resin at Jallo Factory are nominal and, therefore, rates allowed in the present case by the respondent must have caused loss to the Government. In the first instance the evidence lacks to support the submission that any loss at all had occasioned to the Government. Secondly, it cannot be presumed that rates at Jallo Factory were nominal. At least there is nothing on the record to hold so. Jallo Factory is owned by the Pakistan Government and naturally the rates available there which were made applicable in the present case, till contrary is proved, would be construed to be reasonable causing no loss to the Government.
134. Besides, as rightly pointed out by the learned Disqualification Tribunal, there had been a number of other persons alongwith Mr. Qasim Zafar who were also party to the contract. One Ch. Abdul Aziz was the real person who was pursuing the case before the Government. We wonder how Mr. Qasim Zafar alone was singled out to be responsible to have the contract.
135. Here we may now deal with the objection of Ch. Fazal-i-Hussain that orders under the Disqualification Ordinance are of administrative nature and the same standard of evidence which is required' in judicial matters may not be insisted upon. This approach to us is not correct. We have already held that the proceedings before the Disqualification Tribunal are judicial in character and standard of evidence more or less is the same as is required in a criminal case.
Besides to suppose that a judicial point of view must {{BLUR PAGE}} 13.4444,1`.(tk.'41EX) ItIao.A1444407**iipit9Ati)P.IgNiQt* :13in3 VoL. WON 417.1\ Alt:AA 1:43's bit,1YYAQ necessarily be confined to judicial institutions and must not be exercised in ,:executileg Matters is . Wrong. va4.4e,:! However,, I is tfoxliffeTenti.,Aiharitcter.,JThe ; proceedings before, the Pisqualifwationt as contemplated under section 6(2) of the Disqualification 100Llittanc4;,:,,:are $icjal and tfe approach. , should. Also be a judiojcp4s 9ar.Rdf he,atrgumenti eal t.4014*MtMp.IsilVh9Pli,s-.00a4PEla 4nAPRO110.
Yjlinutc,et b103,..Yi 644. 7:4'..-.6 ArdeelviififitardAi::*&vil .Ki'aidgig,i, besi sd loftnuf.4at (41 bswolls, ."7 1:;11IiKle-- .10 '1142;04, tis'ir.7 3
4. .0 "Ine 10r* _$4481.
4.4!It 2 ri? tifinoitinu --,Ab4ut nyom.,,i, "lc:* -mpoppv4 41p9i)kfc, Pres t.341(1.44g tenders, in respect of repaimi.
4.,45 tof oonch House Rawalpindi in favour Ofbis.Own favouriteNtu ainniad v, _ kr-q4aff-tio F- iostraut-L-- ri.Caiik;av's,(4is7:14.0 IAA to aRiAgiS4 extension of 40019l2,14,,c)pse Jus by E tee. Vrnmeit witboutC,jffig ##P7 ofit Yd *490. a.67o2 MuhamniaUskiiitit; f2 Engineer of the time, was examined as witness. His evidence is that the contractfor ib.Iltepairs'.-;aird!Jextensichi,,:of Shafi *lisiQadittiCenitractOr, as was desired.; by the President, SarxbiviMunammad Abdul Kban(it b*thenrivas),ihrbegotiations. Wo of 3dguold ALW ' ani3C1 the appellant (Refeiiihe for his friendly relations *15bAliblietandettivas 'hown favour hint the COlitiba riff tifesitibifiiiNind ZiPtii.Pbbikh Y-133e1 noinw ; vci Dail Qua sd -4aNq examined the -evidence and have also kgilt deep lorppnwierif*FigaitiK,14(The.d6y4rho does not stand proved fog, ho,.t"210wiing talskftasMi:11-100 bfino?.,;51-11v., 1r)
(i) The evidence fails to prove frieridlycrelationintiMr. :blahammacts4Shafi pile& nclOriiNvitA4lie 10Pol1410,iv Ttil.?-nx)71: - - grit qiatif.Ithetsarictiniiiefritheexiontractilistat an illegality or ;,,irregularity, it lwas orimpeirativz>!Tfor,lhit Chief Engineer ancti.lhePifiecratarypiiPiAblic bi 3d IAA/arks Pepaltinent; througbwhtimithec4aase was' processed, 3to opoint elm 38d1 ontAw:the fereindent,that(nacontracttiouldbe given withnntiander. Blo 051 This las 'fitttiltidearl dinne e add Ythi sj omission fitends t'f-loaaltowl ithati3 the bontruotti:cam- abgbtialleintastitot 'detrimental to the!Juterot bilk the I ,se.63 Government flg I 826ailViii8tift the k4egntiatinko'CoMniitita,aChief Engineer being one of its member, allowed the cbiltiati*fivniir of ff angiact.isw9afiri., without tenders. How the 6.,resident, #4,1*sjitic)bbhme..,MittO any irregula* :RcAlp,gality 41 wit zwo xh13).;F,R1g1,111R0,4 of the Committee oftw lecbn71 ta) tliteleitifilfOtble011"Cifaithe Government ri(intAdbilt) to '111' 'of 'the attached with a work Iltnditbat is why the Committee opined that if the work could not be tenitfixout, AbV, Chief Engineer may obtain the .Qs.Qemirojg 941cr fo the award tia`f; /0041 contrars without calliP& 41/04-rsz;:;,(40114SSiolk;1011 t4c5STa.Pei:t.,% the 10;nri aslIEPoWiotOMentfifovrelf5attiPt:AtittWOOtitigt of the makes us to avEhoilve IlcgiltiOfrlEtgt:i'1011.401 Qacift; was 5141qt against OkOintittWic0f the f-DAIPart144Mt49141.-MitePPvieffRMIl9i4 was bviitipal AllelflWihil74t1POW00,La4-SeikivbY *:DINO,am4aCtAilgiff, Chief mum agginge4 tchnbobe epwaiticitvxt,s3sbiasd {{BLUR PAGE}} Ito:nail* gi
(v) the desire of the President, as stated by Mr. Muhammad Yusuf, Chief Engineer, if at all we believe it to be, correct is only a desire. A desire cannot be equated with the order and, therefore, even if we believe that the respondent desired to allow contract by negotiation, it was only meant that the desire should be implemented within the framework of law. It is nowhere in the evidence that the President has in any way insisted upon to implement his desire 'even if it violates any provision of law or rules.
140. Before winding up the charge we may state here that unless it is not proved that any law, rules or notification has been violated, the charge of misconduct cannot sustain. So far this charge is concerned, what to talk Q of violation of the rules or law, the very statement of Chief Engineer show that the contract was in fact given in exercise of the powers of the President (Government) who was competent to relax the rule and the rule, it is significant, was relaxed on the recommendation of the Negotiation Committee. We fail to find any fault in the act of the respondent in owning the report of the Negotiation Committee.
141. Now we come to charge No.
3. It reads :- "That Sardar Muhammad Abdul Qayyum Khan, due to his personal and political interests, without any authority and justification, illegally ordered several disbursementsof public (Government) moneys including a sum of rupees one lac which was paid to Captain (Retd.) Khan of Mong as a grant vide Government Order No. 502-5 dated 9-3-1974."
Here we are only concerned with the payment of rupees one lac to one Khan of Mong. The reading of the charge shows that it contemplates payment made by the Government to Khan of Mong, a Contractor, whose work done at bridge Tain (Poona) was carried away by flood for a number of times due to wrong site selected by the Public Works' Department, i.e., Officer concerned. Ch. Ahsan-ul Haq, Deputy Secretary, it may be stated here, was appointed by the Government to assess the loss suffered by the contractor and the officer reported a loss of Rs. 1,49,165 to the contractor.
142. This report, during its process, remained under criticism and finally Mr. Iqbal Butt, Adviser to the President. Who dealt with the affairs of the Public Works Department, recommended to the Government that the contractor should be paid the amount of the loss in terms of the report of the Inquiry Commission.
143. It appears that the President (respondent) was reluctant to make the payment though he was convinced of the loss to the contractor. He, however, felt advised to order a part payment of Rupees one lac to the contractor on the basis of the report of the Inquiry Officer as a 'grant' to compensate him to some extent. This was concurred by the Finance Department and 'as a result Government order for payment of the amount of grant to the contractor was made.
144. It is thus manifest that despite the satisfaction that the contractor suffered the loss, as reported, the respondent, to save the Government from the total payment of Rs. 1,49,165, very intelligently devised to use the word `grant' for the payment of only Rupees one lac. He could not foresee that this device, in the interest of the Government, may not earn any credit for him. The payment from the contingency was also criticized but no rule was cited to us to show that the amount from the contingency could not legally be paid. Reference to a sentence of paragraph 10.4 of the Budset Manual as made to show that the payment as a matter of 'grace' falls under the purview of financial irregularity. But as held by the learned Disqualification Tribunal the 'grace' is altogether different from 'grant' and their dictionary meanings are not synonymous.
145. The report of the Inquiry Officer was made basis of the payment and it was particularly mentioned by the respondent that the contractor suffered a loss which may be compensated to some extent by means of a grant. When the loss is admitted ; let the respondent use any word- grant or grace. Lt would hardly make any difference because the fact remains that the amount was paid in satisfaction of the loss sustained by the contractor due to the negligent act of the officers of the Public Works Department, who, it appears, had not so far been dealt with in accordance with law. It would not be too late in the day for the Government to attend to this aspect. It may be observed that it was on the recommendation of P. W. D. Minister that the respondent, as President, ordered the payment of the amount. The Minister, in fact, recommended the payment of the total amount of the report. The Finance Department, dealing with the financial matters, also had to say nothing against the action of the President which ultimately took the shape of the Government Order. The charge, thus, is without substance and has rightly been decided in favour of the respondent.
146. Before parting with the charge we may refer to the argument of Ch. Fazal-Hussain that the payment was in violation of rule 13 (1) (b) of the Rules of Business , 1971.. Rule 13 (1) (b) of the Rules of Business is to the effect that no department shall, without previous consultation with the Finance Department, authorise any order for expenditure for which no provision exists. It is thus manifest that this provision has no application in the present s case for the simple reason that the order was not made by any department. S It was made by the Government (President) which was later on concurred by the Finance Department. No question of previous consultation with the Finance Department, therefore, arises because the case was only sent to the Finance Department when liability of the Government towards the contractor was determined.
147. This brings us to charge No.
4. It reads :- "That Sardar Muhammad Abdul Qayyum Khan, without any power and authority, illegaly spent an amount of Rs. 60,000 from the Government money and did not render any accounts thereof as required under law and as such he was guilty of wilful misapplication and diversion of public money and the abuse of power."
' The very reading of the charge would show that the action of the respondent in spending an amount of Rs. 60,000 was not seriously challenged. Stress, however, was only to the effect that the respondent failed to render the account of the same.
148. It may be observed that the Government Older, Exh. P. III, treated this amount as secret fund. It was drawn by the respondent as such and naturally it could be spent as such in accordance with law. The account, of course, was however not maintained by the respondent. But this aspect of the case cannot legally be gone into because there is no such allegation against the respondent and for the reasons stated earlier, this cannot, under the provisions of Disqualification Ordinance, be read as a charge against him. The allegation against the respondent pertains only for non- rendering of accounts.
148, Let us adjudge the validity of the charge viz. The evidence. In support of the charge, Accountant-General was examined by the Referring; Authority. The Accountant-General disowns the charge and says that accounts were rendered by the respondent by giving certificate of expenditure as is required under rules ; and that the expenditure from the secret fund is not auditable. It is further stated that mere certificate of disbursement is sufficient compliance of rules.
He has further stated that it was under the order of the Government that amount was secretly expended by the respondent. As per evidence of the Secretary Finance, the Government was competent to declare the amount as secret. This evidence obviously proves nothing objectionable against the respondent.
149. The argument of Mr. Fazal-i-Hussain that, according to the budget of 1971-72, the amcunt was to be spent on. Publications and Seminars' and could not be transferred to the secret fund by the respondent does not legally sound well because it runs counter to the evidence of the Accountant- General and the Finance Secretary, the witnesses examined by the Referring Authority. They both are in agreement that this could be done by the respondent. We are also not convinced, as argued, that President himself was not competent to have the money or spent it. This submission fails to take note of the fact that secret fund is primarily meant for the President and in the presidential form of the Government the President exercises all the powers of the Government. To that end he may function himself or authorise any other person to function as such. This charge, therefore, has rightly been decided against the appellant.
150. Next charge No. 5 reads as under :- "That Sardar Muhammad Abdul Qayyum Khan, Ex-President, drew and spent an amount of Rs.
60,000 as President from the Discretionary Fund during the financial year 1973-74 and he failed to render any account with regard to expenditure involving an amount of Rs.10,350 which was illegally spent by him against rules and thereby committed acts of abuse of power, wilful misapplication and diversion of public (Government) money."
Under this charge Sardar Muhammad Abdul Qayyum Khan, respondent, is called upon to explain his failure to render accounts with regard to expenditure involving an amount of Rs. 10,385 out of Rs.
60,000 drawn by him from the Discretionary Fund. According to the Referring Authority, the respondent is guilty of misconduct in spending the amount as it amounts to abuse of powers, wilful misapplication and diversion of public money.
151. We have examined the evidence in support of the charge. Evidence fails to provide grounds in proof of the charge. It is in the evidence that the respondent had rendered the account of expenditure with certificates of disbursement. The amount was spent by the President for the very purpose for which it could be expended, i.e., it was distributed among the deserving persons. How can then this expenditure be construed as illegal when it was not spent on an object not meant for it ? The irregularity in not obtaining receipts from the payees on the objection of the Audit Office, it is to be noted, was validly condoned by the Government with the concurrence of the Finance Department, vide order No. 3339-41/Sadar/79 dated 20-3-1979 (Exh. PU). When the irregularity was cured by the Government with the concurrence of the Finance Department we fail to understand as to how this fact can be said to be a 'misconduct' under the Disqualification Ordinance ?
152. We can hardly accept the contention of Mr. Fazal-i-Hussain that the President was not competent to rectify the irregularity by condoning the same. The President, being the rule-making authority, was competent to effect any amendment in the rules. So was also pointed out by the Audit Department itself, vide its letter Exh. PT. In this behalf, which provided a guide to Government (President) to relax the rule with the approval of the Finance Department. It was also submitted that the respondent omitted to maintain proper account as was required of him under the Government Order. But evidence on this score will he treated as evidence in vacuum because no such allegation was made against the respondent. We are not therefore convinced with the argument that any action of the President was, in any way, violative of rule 116 of the Financial Code.
153. Under section 3 of the Azad Jammu & Kashmir Courts and Laws Code Act, 1949, which provides :- " All laws and enactments of the Dogra Rule inconsistent with the provisions of this. Code or with the enactments passed or accepted by the Azad Jammu and Kashmir Government are hereby repealed and all other laws, shall as far as practicable, continue to remain in force."
' Kashmir Budget Manual and Financial Code (laws of the Dogra Regime) continued to remain in force. But here in this case it is worth noticing that the Financial Code, which is shown to us, is printed during Azad Regime and nothing has been brought on the record to make us believe that it is the true copy of the Financial Code of Dogra Regime. Therefore, in the absence of the Financial Code or the Kashmir Budget Manual of Dogra Regime, the Financial Code or the Kashmir Budget Manual now holding the field in Azad Kashmir may not be accepted to be the Financial Code as applicable during the Dogra Regime.
1`4. Now we go to charge No.
6. It reads :- "That Sardar Muhammad Abdul Qayyum Khan, Ex-President, drew two amounts of Rs. 25,000 each totalling Rs. 50,000 from the Government treasury and spent them illegally in 1974 during the Islamic Summit Conference convened at Lahore and failed to render complete accounts thereof as required by law (rules). Moreover he made illegal payments of Rs. 5,000, to Mr. Manzar Masud the then Speaker and Rs. 1,000 to his Personal Assistant Khan Muhammad Hussain Khan. He also spent Rs. 17,884'65 out of Rs. 50,000 for transport purposes although be and his staff was provided with transport facilities by the Azad Kashmir Government. Thus he was guilty of wilful misapplication and diversion of public money and abuse of power."
' This charge relates to non-rendition of account of Rs. 50,000 drawn by the respondent for expenditure in connection with the Islamic Summit. On this charge evidence .Of Mr. Abdul Aziz, Accountant of the President Office, and Sh. Abdul Ghani, Deputy Accountant-General, was relied upon. The former certified a detailed adjustment bill (Exh. P. N.) for the expenditure of Rs. 50,000 in connection with the Islamic Summit. As per this bill two amounts of Rs. 5,000 and Rs. 1,000 were paid by the respondent to Mr. Manzor Masud, the Speaker of the Assembly and Mr. Muhammad Hussain, Personal Assistant to the President, for expenditure towards the achievement of the intended purpose. Besides, a total sum of Rs. 17,884'65 was consumed by transport.
155. The evidence of Sh. Abdul Ghani tells us that the account of the expenditure was required to be rendered under rules and the purchases also ought to have been followed by quotations. To meet this requirement of law the respondent, in this case, felt advised to note on the bills in question that in the cases where vouchers and receipts were not attached with the bills, he himself made the payments without obtaining any receipt and that the restrictions of vouchers stand relaxed. The Government (President), we consider, was competent to make such a relaxation. No law or rule to hold otherwise was brought to or notice. Therefore, we entertain the belief that legal requirement of non-rendering of accounts and omission to call the quotations for the purchases were relaxed in a legal way. Besides, as rightly stated by the learned Tribunal, it was not disclosed as to which were the items for which no vouchers were attached with the bills. The bill was detailed one as is deposed by Sh. Abdul Ghani.
156. In these circumstances it appears that it was only in respect of payments made to Mr. Manzar Masud and Mr. Muhammad Hussain that it was alleged that no vouchers were produced to support these payments. The payment to these persons was made in connection with the Islamic Summit and to meet the needs ancillary to it. The expenditure, it appears, was incurred on transport. There is no evidence that the official transport at the disposal of respondent and his staff was sufficient to meet the needs of the occasion and that the expenditure made by the President was in any way disproportionate to the need of the occasion. It may be stated here that the respondent has, to or satisfaction, explained that in order to demonstrate the issue of Kashmir the people were brought to Lahore from far-off quarters, and Messrs Manzar Masud and Muhammad Hussain were also given amount for this very purpose. The respondent is a man of history and unless he stands impeached, he is to be believed.
157. Mr. Manzar Masud and Mr. Muhammad Hussain Khan, it appears, were very close to the respondent during his stay at Lahore and that in why some money was entrusted to them for the accomplishment of the intended objective. Even otherwise it could hardly be expected of the President to do all towards the achievement of such a gigantic task which confronted him at Lahore. In the circumstances when the Referring Authority does not claim that the amount was not spent on transport, we have no reason to disbelieve the respondent that the amount was spent on transport. In cases where vouchers were not procurable the detail was required to be submitted with disbursement certificates signed by the Officer making the payment. This requirement was fulfilled by the respondent vide Article 172 of the Financial Code, Vol.
1. It is also significant that no audit objection was made on this bill.
158. For the view we have taken in the matter the learned Tribunal has correctly understood the issue, appreciated the same in its true perspective and the finding thus recorded needs no interference.
159. Now we come to the last charge under appeal. It reads "That Sardar Muhammad Abdul Qayyum Khan, drew an amount of Rs. 8,000 from the Government treasury for convening All Pakistan Kashmir Conference in 1973 and spent it without any authority and illegally and also failed to render detailed accounts of the expenditure thereof according to rules. Thus he was guilty of abuse of power and wilful misapplication and diversion of public money."
' Under this charge it is claimed that an amount of Rs. 8,000 was drawn by the President to be spent in connection with holding of All Pakistan Kashmir Conference. But this amount was spent illegally and detailed account of the expenditure, as required under rules, was also not rendered.
160. An amount of Rs. 3,000, out of this amount, was placed at the disposal of Mr. Ghulam Ahmed Raza; a Presidential Assistant whoe njoyed the status of a Minister, to incur expenditure for the intended purpose. In this respect Account D-A, put up by Mr. Ghulam Ahmed Raza, is self-speaking and makes us to believe that he was the person entrusted with the job making initial arrangement in connection with the holding of Conference, and so an amount of Rs. 3,000 was given to him for the purpose. He accordingly incurred expenditure and submitted its detail. An amount of Rs. 120 was, however, spent by one Agha Makhdoom Hussain on purchase of stamps etc. It is supported by receipts. It would thus appear that an amount of Rs. 3,120 was spent in connection with holding of All Pakistan Kashmir Conference and we do not find any fault in this expenditure.
161. Another aspect of the case still remains to be attended. Out of the total amount an amount of Rs. 4,814 was spent on the intertainment of Mr. Pirzada, a Federal Minister, who was also Minister for Kashmir Affairs, during his visit to Azad Kashmir in 1973. The balance was, however, deposited in the treasury. This expenditure is also being objected.
162. The charge against the respondent, in this respect, is that the expenditure was illegal expenditure and it amounts to wilful misapplication, deversion of public money and abuse of power. Mr. Karam Sher Bhatti, a witness from the Audit Department, deposed that the total amount of Rs. 8,000 was drawn from a head relating to 'Seminars and Publications' which was declared as secret Fund to be spent on Kashmir Liberation Movement. He further states that the respondent, who was expected to give a mere certificate of disbursement, sent the detailed account which showed that the amount reflected above was spent on entertainment of Mr. Pirzada, who happened to be the Minister for Kashmir Affairs. It is correct that no vouchers were made available by the respondent but requirement of law was fully complied with by sending a detailed account of the expenditure, as stipulated under Article 172 of the Financial Code, Vol.
1. It may be stated that the very fact that the amount was spent by the Chief Secretary and Secretary Services, of course, on the direction of the President, would show that the expenditure was made in good faith and there was nothing wilful on the part of the respondent to effect any loss to the Government while making this expenditure. It is also a fact that no loss whatsoever had occurred to the Government in making this expenditure.
163. We may state here that expenditure of money for different purposes is not a financial irregularity as contended by Mr. Fazal-i-Hussain, Paragraph 11.11 (i) of the Budget, Manual cited by the learned counsel for the appellant to support his view point, has no relevancy to the issue. It concerns a report to be submitted by the Accountant-General to the Government or some other authority, competent to look into the report submitted by the Accountant-General, whether money set apart for one purpose had been diverted to another. Here in the instant case the respondent has explained his position that it was for an immediate need that the balance of the amount indicated above was for the proper purpose, i.e., for the entertainment of Mr. Pirzada. The purpose on which it was spent was reflected in the budget sanctioned by the Assembly. Therefore, in or view, it was for the office of the President to get the amount recouped by sending recoupment bill to the Audit Office. The President cannot be expected to do the clerical job too.
164. The Chief Secretary and the Secretary Services of the time, it appears, were very much connected with the expenditure in question because they were dealing with this amount while incurringe expenditure and to a great extent they were responsible to get the adjustment of the amount against proper head. Even otherwise we are of the view that under Article 117 of the Financial Code, Vol. I, the balance of the amount could be spent on some other sanctioned object.
It was, therefore, not a case of expenditure incurred on an unrecognised object so as to be objected to.
165. Before parting with the case it may be stated that, as said earlier,' standard of evidence to prove a charge of misconduct is more or less the same which is required in a criminal case. But in the case before us the appellant only takes shelter of probabilities and hypothesis which are no substitute for proof. The spirit of law, as we understand, is that only such acts or omission, especially in relation to misapplication or diversion of public money, would be considered as misconduct which are done intentionally and wilfully. The word 'wilful' has already been given full attention and in or view as none of the charges could be brought within the wilful acts or omissions of the respondent, the proceedings against him naturally cannot be sustained.
166. This case could be disposed of only on merits and the legal points could be skipped over but as the legal points in this case await adjudication in some other appeals, we thought it advisable to dispose them all in this appeal.
167. Before we finally wind up the case we would like to state that under the Government Act, 1970 the executive authority vested in the President and the President only was the repository of all the powers. However, under sub-rule (4) of rule 8 of the Azad Jammu and Kashmir Rules of Business, 1971, which deals with general procedure for disposal of business, if an order was passed by the President in contravention of lam or rule it was the duty of the next below officer to point it out to the President. Therefore if a wrong order was passed by the respondent during that period and he had not been made conscious of it, as stipulated under sub-rule (4) of rule 8 of Rules of Business, 1971, by a Subordinate Officer, no charge against the respondent can sustain. The reason is very simple. The President, as we all know, is not expected to know law. And the rules and that is why under the rules of Business a heavy duty is cast upon the shoulders of the subordinate Staff not to hesitate in pointing out to the President about the illegality or irregularity of an order made by him.
Therefore, if an illegal order is passed by the Government without the knowledge of its character; the element of intention in the circumstances of the case may be lacking and it may be said that it was- not a wilful order to rope in a person for misconduct under the Disqualification Ordinance.
' We have dealt with this aspect of the case because in most of the charges the Referring Authority failed to establish that the orders made by the respondent, assuming that they were bad in law, were objected to by any of the Subordinate Officers.
' In the result this appeal fails with costs. </p.c.!pagfilidlaigful>