Ch. Abdul Aziz, J. Through the instant election appeal, Imran Ahmed Khan Niazi (appellant) called in question the legality of order dated 30.12.2023 passed by the Returning Officer of the constituency NA-89, Mianwali-I whereby his nomination papers were rejected.
2. The brief facts which gave rise to the filing of instant election appeal can be summarized to the effect that in accordance with the schedule announced by the Election Commission of Pakistan, Imran Ahmed Khan Niazi (appellant) filed his nomination papers for contesting election of National Assembly from NA-89, Mianwali-I; that during the scrutiny process carried out under Section 62 of the Elections Act, 2017, the nomination papers of the appellant were rejected by the Returning Officer through his order dated 30.12.2023 which is referred hereinafter as the Impugned Order.
3. It is contended by learned counsel for the appellant that the Impugned Order is factually incorrect and contrary to the law on the subject; that though the appellant was handed down guilty verdict in a case but the accusations against him do not give rise to an offence of moral turpitude; that the appellant was charged under Section 167 of the Elections Act, 2017 which is an offence of Corrupt Practice, having not even a distinct nexus with moral turpitude; that even otherwise the judgment of conviction passed against the appellant is factually and legally incorrect; that the Returning Officer while passing the Impugned Order got unduly influenced from notification No.F.17(4)/2023. Coord dated 08.08.2023 issued by the Election Commission of Pakistan whereby the appellant was disqualified to become a member of Parliament for the period of five years; that according to scheme of the Elections Act, 2017 no power vests in the Election Commission of Pakistan for issuance of such notification; that it is evident from Section 232 of the Elections Act, 2017 that no mechanism is provided for disqualifying a person under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 for contesting election of the parliament; that even otherwise, this was not within the domain of Returning Officer to pass an order against the appellant for rejection of nomination papers by holding him disqualified under Article 63(1)(h) of the Constitution; that the conviction so awarded to the appellant cannot be used as an impediment for contesting election as it has been suspended by the Islamabad High Court through order dated 28.08.2023; that the suspension of sentence of the appellant is a fact sufficient enough to hold that the conviction of appellant is not in field and that since the Impugned Order is patently illegal and factually incorrect, thus is to be set-aside. In support of his submission, learned counsel placed reliance upon Imtiaz Hussain Phulpoto v. Returning Officer and others (1987 SCMR 468), Saeed Ahmad Khan v. Government of N.W.F.P and 4 others (PLD 1989 Peshawar 112), Khawaja Muhammad Asif v. Muhammad Usman Dar and others (2018 SCMR 2128) and Nasir Mehmood and another v. Umer Sajid (2019 SCMR 382).
4. On the other hand, Muhammad Arshad Director General (Law) ECP assisted by the team of law officers vociferously urged for the dismissal of the appeal on the grounds that the appellant stands convicted with imprisonment of three years under Section 167 of the Elections Act, 2017 under the charge of Corrupt Practice; that from the allegations and conviction it implies that appellant was found guilty of a misdeed coming within the definition of moral turpitude; that the Returning Officer rightly held the appellant disqualified from contesting election under Article 63(1)(h) of the Constitution; that this is the incumbent duty of the Returning Officer under Section 62(9) of the Elections Act, 2017 to ensure that the candidate is qualified or disqualified to contest election and whether his nomination papers are submitted while adhering to the provisions of Sections 60 & 61; that admittedly the sentence of the appellant was suspended by Islamabad High Court but his conviction is still intact; that Election Commission of Pakistan was legally competent to issue the notification against the appellant for his disqualification to become member of parliament and that since the Impugned Order suffers from no perversity, thus the appeal in hand merits dismissal.
5. Arguments heard. Record perused.
6. It is discernable from record that Imran Ahmed Khan Niazi (appellant) in an urge to contest election of National Assembly, submitted his nomination papers from the constituency NA-89 Mianwali-I. The nomination papers of Imran Ahmed Khan Niazi (appellant) met the fate of rejection through the Impugned Order passed by the Returning Officer during the process of scrutiny carried out in terms of Section 62 of the Elections Act, 2017. The order of Rejection of the nomination papers is mainly structured upon the ground that since the appellant stands convicted in a case with sentence of three years, thus is disqualified under Article 63(1)(h) of the Constitution for becoming a member of parliament.
7. The appellant admittedly was handed down guilty verdict by Additional Sessions Judge, Islamabad upon a reference placed before him by the District Election Commissioner, Islamabad under Section 190 of the Elections Act, 2017 after having been indicted for the offence of Corrupt Practice under Section 167 of the same Act. Though the learned counsel for the appellant during arguments enrouted through the judgment of conviction passed against the appellant and canvassed that it is legally and factually incorrect but being cognizant of jurisdictional limitation, it will be a fallacious approach for this Tribunal to comment upon the merits of that case while exercising altogether a different legal and territorial jurisdiction. This Tribunal is created under Section 63(1) of the Elections Act, 2017 having powers limited only to examine the legality of orders passed by the Returning Officers under Section 62. The term "jurisdiction", stands for the legal authority vested in a court or forum to decide the controversy placed before it and is to be exercised within the legal sphere, in accordance with some express provision of law. Section 63 of the Elections Act, 2017 places a clog upon this Tribunal to decide only the legality of the finding given by the Returning Officer regarding the rejection or acceptance of nomination papers. The judgment of conviction was passed by a court beyond the territorial and legal limits of this Tribunal, thus the act of expounding upon the legality of such decision amounts to expanding the jurisdiction. The concept of jurisdiction was best defined by Kekewich J. in re Montagu (1897) LR 1 CD 1897 in the following manner:- "It is part of my duty to expand the jurisdiction of the court. It is no part of my duty to expand it."
8. In the wake of facts mentioned above, firstly I deem it appropriate to have a look upon Article 63(1)(h) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) which for convenience sake is referred hereunder:- "63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Majlis-e-Shoora (Parliament) if-(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release."
It explicitly implies from Article 63(1)(h) that conviction in an offence of moral turpitude with sentence of not less than two years disqualifies a person from being elected as a member of parliament and even to remain as such. A person, even if elected as a member of Parliament can subsequently be de-seated on account of the disqualification mentioned in Article 63(1)(h). The expression "moral turpitude" used in Article 63(1)(h) of the Constitution is of vital importance for examining the grievance of Imran Ahmed Khan Niazi (appellant) voiced through the instant election appeal. It is evident from the examination of judicial archives that the expression "moral turpitude" always remained a problematic question due to its legal definition and the case in hand is of no exception. The expression "moral turpitude" is neither defined in Section 2 of the Elections Act, 2017 nor in the definition clause of the Election Rules, 2017. In the given circumstances, as per well-embedded rule of interpretation, the dictionary meanings of the expression "moral turpitude" are to be borrowed. While holding so, the wisdom is derived from the case reported as Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jahan Shah (PLD 2016 Supreme Court 534), the relevant portion of which is as under:- "When a word has not been defined in the statute, the ordinary dictionary was to be looked at."
Accordingly, different dictionaries are consulted to extract the meanings of moral turpitude.
According to Ramantha Aiyer's Law Lexicon, the expression "moral turpitude" is defined in the following manner:- "anything done contrary to justice, honesty, principle or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule or right and duty between man and man"
In Law Lexicon with Legal Maxims, revised by Justice M.C. Desai, Ex-Chief Justice, Allahabad High Court, moral turpitude was defined to the following effect:- "The examination of above-mentioned definitions and meaning of expression "moral turpitude" lead us to a conclusion that the action of a person would fall under the ambit of "moral turpitude" if his action injures, his moral fibers, lowers him down in moral values, it involves an act of inherent baseness in private, social or public duties which one owes to his fellow man, to his society, to his country, his institutions and his Government."
The Supreme Court of Pakistan in the case of Imtiaz Hussain Phulpoto v. Returning Officer, P.S.26- A Khairpur-I/S.D.M, Khairpur and others (1987 SCMR 468) approved the definition of expression "moral turpitude" given by an Election Tribunal with the following observation:- "The learned Tribunal after making reference to the meaning and connotation of the expression 'moral turpitude' as contained in some authoritative work and in some decided cases came to the following conclusion:- "The principles emerge appear to be that the question whether a certain offence involves moral turpitude or not will necessarily depend on the circumstances in which the offence is committed. It is not every punishment that can be considered to be an offence involving moral turpitude had that been so, the qualification 'involving moral turpitude' would not have been used by the Legislature and it would have disqualified every person who had been convicted of any offence.
The test which should ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appeal to be:
(1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general;
(2) Whether the motive which led to the act was base one; and
(3) Whether on account of the act having been committed perpetrator could be considered to be a depraved character or a person who was to be looked down by the society."
Although the afore-reproduced categorization may not be exhaustive in so far as it goes by and large there is nothing about it."
In a recent case reported as Divisional Superintendent, Postal Services, D.G. Khan v. Nadeem Raza and another (2023 SCMR 803), the Supreme Court of Pakistan discussed the expression "moral turpitude" and observed to the following effect:- "Moral turpitude was defined in Imtiaz Ahmad as "the act of baseness, vileness or depravity in private and social duties which man owes to his fellow man, or to society in general contrary to accepted and customary rules of right and duty between man and man." In Ghulam Hussain, it was held that moral turpitude includes anything which is done contrary to the goods principles of morality, any act which runs contrary to justice, honesty, good moral values or established judicial norms of a society."
In the above backdrop, it can well be concluded that in reference to the particular facts of the case, the definition of a moral turpitude is to be assessed in reference to the moral fibers appellant had to demonstrate according to the office of Prime Minister which he held. Likewise, the delinquency attributed to the appellant culminating in the judgment of conviction is to be adjudged in reference to the prospect of lowering his status and the office of Prime Minister. The applicability of moral turpitude is to be gauged in accordance with morals an ordinary citizen is required to demonstrate, besides in consonance with legal requirement pertaining to a parliamentarian and in particular to a Prime Minister for declaration of his assets. For the afore- mentioned purpose, the finding of conviction given against the appellant is to be seen which admittedly is in field even at present. For that matter, I feel pressing need to reproduce hereunder para No.36 of the judgment dated 05.08.2023 passed by the Additional Sessions Judge, Islamabad which became root cause of his disqualification:- "All these factors when considered in juxtaposition establish beyond any doubt that failure of accused to disclose these assets in relevant Forms-B, which forms were executed by the accused on solemn affirmation, were based upon mala fide intents and intentional dishonesty on his part.
Thus, the accused being dishonest and deceitful, made false declarations in his Forms-B for the financial years 2018-2019, 2019-2020 and 2020-2021, and thereby committed the offence of Corrupt Practice under Section 167(a) read with Section 173 of the Elections Act, 2017."
The use of words "dishonesty" and "deceitful" in the judgment dated 05.08.2023 has inexorably brought the conviction of Imran Ahmed Khan Niazi (appellant) within the ambit of moral turpitude, attracting the mischief of Article 63(1)(h) of the Constitution. I have also scanned the case law upon which the learned counsel for the appellant placed reliance. In Imtaiz Hussain Phulpoto's case, conviction was awarded for public disorder, whereas in Saeed Ahmed Khan's case, the indictment was made for the recovery of a proscribed Russian book and written substance in support of communism. Likewise, in Khawaja Muhammad Asif's case and Nasir Mehmood's case the allegation was of concealment of assets.
9. So far as, the notification No.F.17(4)/2023.Coord, dated 08.08.2023 of ECP disqualifying the appellant for contesting election is concerned, it is informed that such notification was challenged through W.P.No.332 of 2023 which is still pending decision at the Principal Seat of Lahore High Court.
It will not be in fitness of things, in the given circumstances, to comment upon the legality of such notification as it can give rise to possible conflicting decisions. Even otherwise, this is not within the domain of the jurisdiction vested in this Tribunal to ponder upon the legality of the notification, since it established with limited scope mentioned in Section 63 of the Elections Act, 2017.
10. I have also given a considered thought to the argument of learned counsel for the appellant whereby he canvassed that the Returning Officer while passing the Impugned Order travelled beyond his powers while rejecting the nomination papers in accordance with Article 63(1)(h) of the Constitution. According to the legal scheme, an individual can be ousted from the electoral process by rejection of his nomination papers. Even a returned candidate can be de-seated through an election petition in accordance with Chapter-IX of the Elections Act, 2017, if his nomination papers are later found to be not in consonance with Section 60. The filing of a writ of quo warranto is another way out if subsequently it transpires that the returned candidate was not qualified to become a member of parliament. I am mindful of the fact that the appellant is ousted from the electoral process through rejection of his nomination papers, thus intend to remain confined only to this extent.
11. The nomination papers are filed under Section 60 of the Elections Act, 2017 and the detail of the documents required to be annexed therewith is mentioned in its subsection 2(a)(b)(c)(d). The declaration required to be filed under Section 60(2)(a) pertains to the qualifications and disqualifications of the candidate for being elected as member of the Parliament. These nomination papers are to be scrutinized by the Returning Officer and his powers of rejection are enumerated in Section 62(9) of the Elections Act, 2017 and the foregoing provision on account of its importance is referred hereunder:- "(9) Subject to this section the Returning Officer may, on either of his own motion or upon an objection, conduct a summary inquiry and may reject a nomination paper if he is satisfied that-
(a) The candidate is not qualified to be elected as a member;
(b) The proposer or seconder is not qualified to subscribe to the nomination paper;
(c) Any provision of section 60 or section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular."
The combined perusal of Section 60(2)(a) & Section 62(9)(a)(c) leaves no room for discussion that on one hand, the candidate is required to execute a declaration that he is not disqualified under Article 63 of the Constitution to contest election and on other hand this is the incumbent responsibility of the Returning Officer to ensure that such aspirant suffers from no disqualification to participate in the election. If the argument that the Returning Officer has no domain to dilate upon the disqualification of a candidate under Article 63 of the Constitution is accepted then I am afraid the provisions of Section 60(2)(a) and 62(9)(a)(c) of the Elections Act, 2017 will become redundant. The purpose of filing a declaration under Section 60(2)(a) of the Elections Act, 2017 is aimed at enabling the Returning Officer for giving a finding about the legal competency of a candidate to contest election. I have no scintilla of reluctance to hold that the Returning Officer was legally competent to examine the candidature of Imran Ahmed Khan Niazi (appellant) while subjecting his nomination papers to scrutiny on the touchstone of Section 62 of the Elections Act, 2017. The view so formed is amply supported from the observation of the Supreme Court of Pakistan given in para-20 of the case reported as Imran Ahmed Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 Supreme Court 265) which for reference sake is being reproduced below:- "The next question emerging for the consideration of this Court is what are the fora provided by the Constitution and the law to deal with the questions emerging from Articles 62(1)(f) and 63(2) of the Constitution. To answer this question, we will have to fall back upon Articles 62 & 63 of the Constitution. A careful reading of the Articles would reveal that the one deals with the qualification of a person to be elected or chosen as a member of Parliament while the other deals with qualification of a person not only from being elected or chosen but also from being a member of Parliament. If a candidate is not qualified or is disqualified from being elected or chosen as a member of Parliament in terms of Articles 62 and 63 of the Constitution, his nomination could be rejected by the Returning Officer or any other forum functioning in the hierarchy."
12. I have also dilated upon the argument of learned counsel for the appellant that after the suspension of sentence, the conviction of appellant cannot be treated to be in the field. Against the conviction, the appellant filed Criminal Appeal No.273 of 2023 in Islamabad High Court which was accompanied by a petition for suspension of sentence numbered as C.M.No.01/2023. For properly attending to the argument of learned counsel for the appellant, it appears to be in fitness of things to reproduce the prayer clause of the petition for suspension of sentence placed before Islamabad High Court:- "It is therefore, prayed most respectfully that pending final disposal of the Appeal, the sentence of the applicant may very kindly be suspended, and he be released on bail."
The sentence of the appellant was suspended by a Division Bench of the Islamabad High Court vide order dated 28.08.2023 and its concluding para having pivotal importance is referred as under:- "For the above reasons, the instant application is allowed and the sentence awarded by the Trial Court vide judgment dated 05.08.2023 is suspended; consequently, the applicant is ordered to be released on bail in the instant matter subject to furnishing bail bonds in the sum of Rs.1000,000/- with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court."
From the prayer clause of the petition moved under Section 426 Cr.P.C. and the concluding para of order dated 28.08.2023 of Islamabad High Court, it unambiguously emerges that neither any request for suspension of conviction was made nor an order in this regard was passed. Even otherwise, the conviction and sentence are two different terms; the former pertains to the guilty verdict and the latter stands for the rigors which follow from conviction. The conviction means a guilty verdict pronounced by the Court in reference to the delinquency attributed to accused, whereas sentence denotes the quantum of punishment. Section 426 Cr.P.C. is an enabling provision which brings a convict out of the rigors of undergoing the sentence awarded to him but keeps the conviction intact. The difference between the conviction and sentence was exhaustively explained in the case of Abdul Kabir v. The State (PLD 1990 Supreme Court 823) in the following manner:- "A conviction is complete as soon as the person charged has been found guilty by a competent jurisdiction. During the pendency of an appeal, appellate court may suspend the sentence under section 426 Cr.P.C. So execution of sentence of petitioner is suspended and not his conviction which remains operative till it is set-aside by the higher appellate Courts. Pendency of the appeal for decision does not ipso facto means that the conviction is wiped out. The appellate court has no authority under section 426 to suspend the conviction. Conviction and sentence connote two different terms. Conviction means proving or finding guilty. Sentence is punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. It cannot be accepted as principle of law that till matter is finally disposed of by Supreme Court against convicted person, the conviction would be considered as held in abeyance. This interpretation is not in consonance with the spirit of law and against logical coherence. The suspension of sentence is only a concession to an accused under section 426, Cr.P.C but it does not mean that conviction is erased."
Similar view was expressed in another case reported Nasir Mehmood and another v. Umer Sajjad and others (2019 SCMR 382).
13. The afore-mentioned reasons explicate that the nomination papers of Imran Ahmed Khan Niazi (appellant) were rightly rejected by the Returning Officer of NA-89, Mianwali-I; as a necessary consequence, the instant election appeal stands dismissed.