' RAJA MUHAMMAD KHURSHID KHAN, ACTG., C. J.-Through this appeal Sardar Khan Bahadur Khan, appellant, a former Education & Rehabilitation Minister of the Azad Government of the State of Jammu and Kashmir, seeks to call up and quash the finding of misconduct recorded against him under section 5 of the Holders of Representative Offices (Desqualification) Ordinance, 1979 (hereinafter to be referred as the Disqualification Ordinance) by a Disqualification Tribunal vide order dated 5-7-1979. The Tribunal consisted of Brig. Safdar All Khan (Chairman) and Raja Bashir Ahmed District & Sessions Judge (Member).
2. The appellant was sent to the Tribunal to face trial on seven counts touching his conduct while functioning as Education Minister of the Azad Kashmir Government and Member of the Azad Kashmir Legislative Assembly. The learned Tribunal, barring Charges Nos, 1 and 2, found all other charges as unproved. Charges Nos, 1 and 2 however, in the estimation of the Tribunal, stood proved resulting in this disqualification of the appellant to hold or contest election for any public office for seven years.
3. Charges Nos, 1 and 2 are as under. Charge No. 1 reads :- That in the Pakistan Elections held during the year 1977 Sardar Khan Bahadur Khan, former Minister, participated in the election campaign and for the purpose toured various places in Pakistan and participated and addressed election meetings of candidates of the Pakistan People's Party contesting election for the Central and Provincial Assemblies. The charge further states that Sardar Khan Babadur Khan wrongfully entered these tours in his T. A. And D. A. Bills as to have been taken in the interest of the State and thus illegally received an amount of Rs, 10,000 as T. A., D. A. And petrol expenses. This act of the appellant, according to the Referring Authority, amounts to wilful misapplication and diversion of public money and abuse of power. Charge No, 2 reads :- That Sardar Khan Bahadur Khan, for his participation in the election campaign of the Pakistan People's Party during the elections held in 1977, illegally utilized the Government vehicle which amounts to abuse of power. It would be seen that to substantiate charge No. 1 the following ingredients are necessarily to be proved-
(i) that the appellant had taken part in the Pakistan People's Party Election campaign during the year 1977 and for that purpose toured various places in Pakistan ;
(ii) that the appellant participated in the public meetings arranged by Pakistan People's Party's dandidates contesting elections for the Central and Provincial Assemblies and also addressed these meetings and
(iii) that these illegal tours had been wrongly entered by the appellant in the T. A. And D. A. Bills as taken in the interest of the State and thus an amount of Rs, 10,000 received by the appellant from the Government exchequer as T. A., D. A. And petrol expenses amounted to wilful misapplication of public money and abuse of powers.
4. Charge No, 2 in fact, flows from charge No. 1. It only pertains to the illegal utilization of Government vehicle during this period. Therefore, if Charge No. 1 sustains, Charge No, 2 automatically stands established.
5. It would thus appear that if it stands established that the appellant, Khan Bahadur Khan, during the month of February, 1977, had undertaken the tour of Pakistan for propagating in favour of any of the candidates of the Pakistan People's Party contesting election for National or Provincial Assembly in Pakistan and to achieve the objective some meetings were also addressed by the appellant, then only and not otherwise it would be said that he is guilty of misconduct under the provisions of the Disqualification Ordinance. Here in this case there is nothing to hold so. The evidence falls short to prove the charge. In fact all the exercise of the evidence in support of Charge No. 1 is mainly diverted to prove the fact that the appellant, during the month of February, 1977, alongwith the President of Azad Kashmir undertook the tour of Pakistan and during the tour- lot many of public meetings were addressed by him. This fact obviously does not prove the charge which talks of participation of the appellant in the meetings and delivering speeches in favour of Pakistan People's Party's candidates. The main evidence regarding the accusation consists of Riaz Butt and Ghulam Rasul, Photographers. They fail to implicate the appellant. They do not say that the appellant had ever participated in any of the meetings of Pakistan People's Party or addressed such meetings calling upon the audience to vote for them. All that they say is that the appellant, during the month of February, 1977, undertook the tour of Pakistan and addressed some meetings.
They do not, as said earlier, say that the appellant had addressed any meeting for any of the candidates of Pakistan People's Party contesting the election. The learned Tribunal, on the basis of testimony of these witnesses, only found and very rightly that during the month of February, 1977, the appellant had undertaken the tour of Pakistan. This finding obviously fails to connect the appellant with the charge which says that the appellant addressed some meetings in favour of the candidates of People's Party. We may state here that Riaz Butt, Photographer in departure to the prosecution case states that the appellant, at various places, had only addressed the refugees.
Naturally on this evidence the charge cannot sustain. The evidence tendered on behalf of the prosecution thus hardly furnishes any proof of misconduct against the appellant.
6. Thus, remains only the statement of the appellant which is mainly relied upon by the Tribunal to sustain the charge. It was contended by Mr. Sayab Khalid, Advocate, that if the conviction of the appellant is to be based on his statement alone, the statement must be taken in its entirety and it was not open to the Tribunal to rely on any incriminating portion of the statement (though there is none) here of the appellant and to exclude from consideration the exculpatory part thereof There is no, he contended, evidence to show that any portion of the admission which was relied upon against the appellant is false. The admission, according to him, is to be accepted or rejected as a whole.
7. We have examined the statement of the appellant and written arguments. To have clarity on the point we may here make reference to some portion of the statement. The appellant, in his statement, stated {{URDU TEXT}} The statement if read as a whole, nowhere implicates the appellant. He nowhere says that he had addressed the meetings of the Pakistan People's Party in favour of the candidates of the party. All that he suggests is that he had addressed some meetings of the refugees of the Jammu & Kashmir and some others stressing the need that the people should conduct in a way which would create feeling of mutual confidence and patriotism in the minds of the people of Pakistan and that of Azad Kashmir.
8. We feel that the statement of the appellant has not been correctly read. The cardinal principle of law that the admission or confession, as the case may be, has to be taken as a whole has been ignored. We have had large many cases on the point. From the Indian jurisdiction Balmakund v.
Emperor ; Banta Singh v. Emperor ; Fazal Hussain v. Emperor ; Sanlaydo v. Emperor ; Sher Gul v.
Emperor and Emperor v. Itwa Munda may be cited to support the. Proposition. All these cases more or less recognise the principle that where the evidence adduced by the prosecution is wholly disbelieved and the conviction of the accused is solely based on the confession, that confession must be taken in its entirety. They also recognise the principle that where there is no other evidence to show affirmatively that any portion of the exculpatory element in a confession is false the Court must accept or reject the confession as a whole and should not accept only the inculpatory element while rejecting the exculpatory, element as inherently incredible.
9. It would thus appear that it is now well-settled principle of law that an admission made by a person, whether it amounted to a confession or not, cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If any authority from Pakistan jurisdiction is needed in support of this view we would not go beyond the decision of the Federal Court in Rahim Bakhrh v. Crown and extract the following terse observation of Abdul Rashid, C. J., at page 7 :- "If the conviction of the petitioner is to be based solely on his statement in Court dated the 11th May, 1944 it is obvious that this statement should be taken into consideration in its entirety."
10. Even otherwise we have critically looked into the statement and written arguments submitted by the appellant. Considering the statement as a whole we are unable to share the view of the learned Tribunal that the appellant had admitted that he had addressed any meeting of the Pakistan People's Party in the Pakistan Elections held during the year 1977 nor we can subscribe to the finding of the Tribunal that the appellant had admitted to have participated in the Pakistan People's Party election campaign during the year 1977. The Tribunal has in fact misdirected itself to hold so: We could hardly find any part of the statement of the appellant to have owner the accusation that he ever participated in the election campaign of any of the candidates of the Pakistan People's Party contesting election for Central or Provincial Assembly. The finding thus having been recorded without any evidence is to be recalled.
11. We also entertain the belief that addressing Jammu & Kashmir refugees settled in Pakistan and some other meetings to strengthen the brotherly ties of Azad Kashmir and Pakistan can never be construed to be a misconduct. Even otherwise evidence cannot be read beyond the charger even if it establishes misconduct. So was held in case titled Chief Secretary v. Sardar Muhammad Abdul Qayyum Khan . Dealing with the point it was observed :-1 2 3 4 5 6 7 8 "The charge is what it speaks and not what it ought to have been. The evidence, therefore, on an aspect beyond the charge shall be construed to be evidence in vacuum."
12. Therefore, even if, as said earlier, it is assumed that the appellant had addressed some gatherings apart from the meetings of the refugees, that cannot itself be read as charge against him because the charge here is specific in terms that the appellant had addressed the meetings of the People's Party in favour of the candidates for the Parliament and Assembly. If we read the statement of the appellant as a whole it would show that the appellant admits to have only addressed the Jammu & Kashmir refugees settled in Pakistan or some other public meetings with regard to the relations of Pakistan and Azad Kashmir. The appellant, it is significant, as per Government Gazette No, 70, Vol. XXII, dated 15-11-1976, was also Rehabilitation Minister. With this capacity it was well within his powers rather it was his official function to look into the affairs of the refugees of' Jammu & Kashmir settled in Pakistan. For the view we have taken I the matter the appellant, in the capacity of a Rehabilitation Minister, was entitled to tour Pakistan to look into the affairs of the refugees. The Government vehicle used for the purpose cannot be said to be illegal utilization of the vehicle. Charge No, 2 naturally fades.
' For the above-stated reasons we accept this appeal and hold that no charge of misconduct could be proved against the appellant by the referring authority. Thus, the finding of Disqualification Tribunal, dated 5-7-1979 stands discharged. AIR 1931 All. 1 AIR 1933 Lab. 232 AIR 1933 Lah. 665 AIR 1933 Rang. 204 AIR 1935 Lab. f71 AIR 1938 Pat. 258 PLD 1952 FC 1 PLD 1983 C (A J K) 95