' SARDAR SAID MUHAMMAD KHAN, J.-This appeal has been preferred under subsection (7-A) of section 7 of Holders of Representative Offices (Disqualification) Ordinance, 1979, against the judgment of the Disqualification Tribunal, dated 26th September, 1979.
2. Sheikh Manzar Masud, appellant, was charged with various allegations and a reference was made to Special Tribunal constituted under the provisions of Holders of Representative Offices (Disqualification) Ordinance (hereinafter shall be called the Ordinance). The appellant was absolved of all other charges except the following three charges on which he was found guilty under the provisions of the Ordinance: -
(i) that during the tenure of his office as Speaker of Azad Jammu and Kashmir Legislative Assembly, Mr. Manzar Masud was allotted a Car No, AJK 3038 for his official use but he even after the relinquishment of his office as such, retained the Car for his personal use without any entitlement against rules and despite notices issued to him for the return of the same, but it was not returned ;
(ii) that during the General Elections in Pakistan held in March, 1977 while he was an Advisor to the Prime Minister of Pakistan for A. K. Council, drew an amount of Rs, 10,756 as T. A./D. A. From the Government Exchequer, showing the journeys undertaken in performance of his official duty whereas he, in fact, undertook the tours of various parts of Pakistan in contention with Election Campaign of the candidates of the People's Party and actively participated in the processions and meetings held by the candidates of the Assemblies (National as well as Provincial) for the purpose of canvassing in their favour and while doing so, the official vehicle was also improperly used by him ; and
(iii) that on 15th April, 1975 (it may be taken as 16th) when Mr. Manzar Masud was Speaker of the Azad Jammu and Kashmir Legislative Assembly, took part in the proceedings of the Assembly pertaining to 'vote of non-confidence' against the then President and cast his vote against the provisions of the Constitution and rules framed thereunder and also asked, in writing, the Chairman (of the Session) who was illegally appointed by him as such, to violate (the provisions of the Constitution as well as rules thereunder) in the manner as he himself did."
3. It is evident from the above-listed charges that charges Nos. (i)i and (iii) were levelled against the appellant in his capacity as Speaker of the Azad Jammu and Kashmir Legislative Assembly, whereas charge No, (ii) was levelled against him as Advisor to the Azad Kashmir Council.
4. Mr. B. A. Sheikh, the learned counsel for the appellant, has argued that the appellant could not be held guilty on charge No, (i), listed above, because the 'Speaker' of the Azad Jammu and Kashmir Legislative Assembly was not included in the definition of 'Holders of Representative Office' in the relevant Ordinance which was in force at the time of initiation of the proceedings against the appellant. The learned counsel has further argued that a subsequent amendment, whereby the office of the 'Speaker' was also included, in the definition would not change the position in view of the verdict of this Court in a case Referring Authority/ Chief Secretary v. Sardar Sikandar Hayat Khan (1), wherein it has been held that law altered during the pendency of action would not affect the rights of the parties and their rights and obligations are to be determined according to law which existed at the time of initiation of action and not according to law existing at the time of the judgment or the order. It was further opined in the said case that only exception to the aforesaid general principle of law is that when law relates to matter of procedure it would operate retrospectively.
5. In the instant case the subsequent amendment, whereby the office of the 'Speaker' was also included in the relevant provisions of the Ordinance, was not relied or pressed before the Tribunal and the impugned judgment
(1) PLD 1982 SC (AJ & K) 112 ' finds no reference to that effect. The learned counsel for the respondent did not controvert the arguments advanced by the learned counsel for the appellant and did not base his arguments on the said amendment.
6. Mr. B. A. Sheikh, the learned counsel for the appellant, has argued that the Tribunal has misconstrued the relevant provisions of the Ordinance and erred in holding that as only a Member of the Legislative Assembly, which is included in the relevant provisions of the Ordinance, could be elected as Speaker, the appellant could rightly be found guilty in his capacity as Member of the Legislative Assembly despite the fact that he was not charged in that capacity. The learned counsel for the respondent supported the judgment of the Tribunal by arguing that as only a Member of Legislative Assembly could be elected as Speaker of the Assembly, it would be presumed that the appellant was a Member at the time when he misused his power or position and thus he was rightly found guilty of charge No, (i) listed above.
7. We have given our earnest consideration to the arguments advanced by the learned counsel for the parties with regard to the validity and proof of charge No, (1) mentioned above. A perusal of the aforesaid charge would reveal that according to the referring authority Car No, AJK 3038 was allotted to the appellant when he held the office of the Speaker of the Legislative Assembly, but he did not return the Car when he relinquished the said office and retained the car for his personal use. It is evident that according to the charge, the misconduct, if any, was committed after the relinquishment of the office of the Speakership by the appellant and not during the period when he was holding the said office.
8. Now the next question arises as to whether after leaving the office of Speaker, he held any other office which could be termed as representative office within the meaning of the relevant definition given in the Ordinance. The findings of the Tribunal are that he committed misconduct because he retained the official car when he was Member of the Azad Jammu and Kashmir Legislative Assembly and was Advisor to the Azad Jammu and Kashmir Council. We have asked the learned counsel for the respondent to show us from the record that after the relinquishment of the office of the Speaker, the appellant still remained the member of the Legislative Assembly. Whether after vacating the office as Speaker the appellant remained the Member of the Azad Jammu and Kashmir Legislative Assembly, is a question of fact and was to be proved by some tangible evidence. There is not an iota of evidence on the record to substantiate the contention that the appellant had enjoyed the status of Member of the Azad Jammu and Kashmir Legislative Assembly during the relevant period when he retained the official car without any legal justification. So far as the office of Advisor to the Council is concerned, in view of the provisions of section 31(2)(a) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with Schedule Third to the said Act, only the Council had the power to legislate with regard to the matters concerning its Advisors and as such the Ordinance in question, so far as it related to the conduct of the Advisor or for that matter the appellant, could be only promulgated by the President of the Azad Jammu and Kashmir on the advice of the Chairman of the Council and not otherwise. It is not controverted that the Ordinance in question so far it related to the matters relating to Advisor to the Council was not promulgated on the advice of the Chairman of the Council. Thus, we have no hesitation in holding that the Ordinance, so,B far as it related to the conduct of Advisors to the Council being violative of the Constitution Act, 1974, is void and no charge could be sustained against the accused-appellant in that capacity. It follows from what has been stated above that charge No, (i), listed above has not been brought home against the appellant.
9. So far as charge No, (ii), abovementioned, is concerned that too pertains to the capacity of the appellant as Advisor to the Azad Jammu and Kashmir Council and as such this charge must also fail on the ground stated above.
10. Coming to charge No, (iii) listed above it may be observed that learned counsel for the appellant has referred to section 34 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and vehemently argued that the appellant was not liable to any proceedings in any Court because the charge levelled against him pertains to his conduct as Speaker of the Assembly. For appreciating the point the relevant part of section 34 is reproduced as under:- "34. General provisions regarding Council, etc.-(1) The validity of any proceedings in the Council, the Assembly or a joint sitting shall not be questioned in any Court.
(2) An Officer or member of an authority in whom powers are vested for the regulation of proceedings, conduct of business, maintain order in the Council, the Assembly, or joint sitting shall not, in relation to the exercise by him of any of those powers, be subject to the jurisdiction of any Court.
(3) A member of, or a person entitled to speak in, the Council the Assembly or a joint sitting shall not be liable to any proceedings in any Court in respect of anything said by him or any vote given by him in the council, the Assembly or a joint sitting or in any thereof.
(4)
(5)
(6)
11. It is evident that charge No, (iii) mentioned above pertains to them conduct of the appellant in his capacity as Speaker of Azad Jammu and Kashmir Legislative Assembly. The matters relating to the exercise of powers by the appellant as Speaker of the Legislative Assembly and question regarding the use of right of his vote as member of the Assembly clearly fall within the ambit of the aforesaid Constitutional provisions and thus the C appellant is protected from any proceedings in any Court of law. His conduct as Speaker is not open to scrutiny in view of the aforesaid provision.
Thus, the charge being violative of the Constitution could not be levelled against the appellant and as such must fail on that score.
' In the light of what has been stated above, we accept the appeal, set aside the impugned judgment and absolve the appellant from all the three charges listed above.