1. ' ABDUL QADEBR CHAUDHRY, J.-This order would dispose of the two petitions filed by the petitioner Wali Muhammad.
2. ' The petitioner filed nomination papers to contest local bodies election from Wards Nos. 4 and 5 of the Town Committee Dhadar. The Second respondents in the two petitions were also contesting candidates from the said ward. Both the nomination papers were accepted by the Returning Officer. The two contesting respondents challenged the order of Returning Officer accepting the nomination papers of the petitioner, by way of an appeal, before the first respondent. The first respondent by means of order dated 4th August, 1983, allowed the appeal of these respondents on the ground that the petitioner was convicted under section 302, P. P. C. And sentenced to 14 years'
3. R. I. In a murder case, therefore, he is disqualified to contest the election. The argument of the petitioner that the offence of murder does not involve moral turpitude was not accepted by the Commissioner.
4. ' The Petitioner has filed this petition to challenge the order of Commissioner (respondent No, 1).
5. ' It is the case of the petitioner that he was convicted under section 302, P. P. C. By the F. C. R. Court and the murder has been committed by the petitioner on account of Siahkari, therefore, it does not amount to moral turpitude.
6. ' We have heard Mr. Azizullah Memon learned Counsel for the petitioner, Mr. Muhammad Aslam Chishti learned counsel for resdondent No, 2, Mr. Munawar Ahmad Mirza, Advocate-General for the official respondents and Messrs Basharatullah and Moquim Ansari as amicus curiae.
7. ' The disqualification of a candidate has been mentioned in section 21 of the Baluchistan Local Government Ordinance II of 1980. The relevant provision is section 21 (e), which provides that a person shall be disqualified to be a candidate of a local council if he has been on conviction for an offence involving moral turpitude sentenced to imprisonment for a term of not less than 6 months.
8. In the explanation, moral turpitude means anything that injuries the moral fibre of a person and lowers him down for moral values. It has been contended by the learned counsel for the petitioner that as the murder had been committed by the petitioner on account of Siahkari, and as in the tribal society such an act is never considered to be an offence, therefore, in the eye of law he is innocent. In order to appreciate this contention we have to advert to the facts of the case. The petitioner and co-accused Hakim were put up for trial before the Jirga held at Mastung on 4th of October, 1961, for an offence under section 302, P. P. C. For the murder of Zarak and Mst. Sheereen wife of Hakim and the sister of the present petitioner. The Jirga gave its unanimous award on the said date finding that the accused were the murderers of the two deceased and the cause of murders were Siahkari. The Jirga recommended that the two petitioners be acquitted. The award was placed before the District Magistrate, Kalat who agreed with the finding of the Jirga that the petitioners were responsible for the murders of the two deceased. The plea of Siahkari was not accepted by him. The learned District Magistrate on the case placed before him found the petitioner and co-accused guilty of an offence under section 302, P. P. C. And sentenced each of them to undergo 14 years' R. I. By order dated 7th November, 1961. Since the sentence in this case was of more than 7 years, the District Magistrate forwarded the case for confirmation to the Commissioner, F. C. R Kalat Division who confirmed the sentence by order, dated 20th November, 1961. The petitioner filed a revision petition under section 49 of the F. C. R. But the same was dismissed on 10th January, 1962, by the Commissioner, F. C. R. It was found by the District Magistrate Kalat and the Commissioner Kalat Division that the petitioner was guilty of an offence under section 302, P. P. C. And the recommendation of the Jirga that the petitioner was entitled to acquittal on the ground of Siahkari was not accepted. The petitioner challenged the orders passed by the F. C. R. Courts in a writ petition before the High Court which was disposed of by a Division of the erstwhile West Pakistan High Court, Quetta Circuit on 24th May, 1962. The petition was dismissed. The ground urged in the petition by the petitioner was that the order of District Magistrate Kalat and the Commissioner Kalat Division finding the petitioner guilty under section 302, P. P. C. Are illegal on the ground that once the Jirga recorded verdict of not guilty, then the District Magistrate is not competent to pass an order of conviction and sentence on these findings under section 11 of the F. C. R. The following observation of the High Court is relevant :- "The question, therefore, for consideration in, this matter is whether the learned District Magistrate in convicting the petitioners has departed from the finding of fact arrived at by the Council of Elders. In both the cases the Council of Elders came to the conclusion that the petitioners were responsible for the double murders and the cause of murder was `Siahkari'. The learned District Magistrate accepted these findings of fact and has then proceeded to consider what offence, if any, the petitioners in the two writ petitions have committed, It is quite correct that in both the cases the Council of Elders recommended, in accordance with the customary law of Baluchistan, that the petitioners should be acquitted, but this recommendation was not accepted.
9. ' It seems to me that the learned District Magistrate in proceeding in this manner has not departed in any way from the provisions of section 11, F. C. R. This section does not lay down that the cases referred to the Jirga are to be decided in accordance with the customary law. On the contrary the offences committed by the accused person, on the finding of facts of the Jirga, are to be determined according to the Ordinary law of the land."
10. ' It is, therefore, clear that the District Magistrate and the Commissioner came to the conclusion that the petitioner was guilty of an offence under section 302, P. P. C. The legal objection taken by the petitioner in the High Court was not accepted by the High Court and it was held that the section 11 does not provide that the case referred to the Jirga is to be decided in accordance with customary law, on the contrary the offence committed by the accused and the finding of facts of Jirga are to be determined according to ordinary law of the land. The contention now raised by the learned counsel for the petitioner that the petitioner had committed the murder on account of Siahkari was not accepted by the courts of competent jurisdiction and he had been convicted under section 302, P. P. C. The writ petition was also dismissed and no illegality was found in the orders impugned before the High Court. This is a question of fact which has been finally resolved by the Courts. At this belated stage the decided question cannot be re-opened because the finality attaches to the orders passed by the tribunals having jurisdiction in the matter. The District Magistrate had come to a definite conclusion that there was no justification whatsoever on the part of the present petitioner to kill the two persons. It is quite possible that he might have been informed wrongly by accused Hakim the only eye-witness of Siahkari. Even Hakim did not kill them there and then who had allegedly seen the incident of Siahkari three days before the occurrence. It was no sudden and grave provocation to justify his act. It was a pre-meditated and well-IA planned murder. Both accused Walu (the present petitioner) and Hakim planned murders and carried them according to plan. Therefore, murder were committed without any exception under section 302, P. P. C. T this finding of the District Magistrate the learned Commissioner had agreed.
11. The plea of Siahkari was not taken before the High Court. It is not open to the petitioner to contend that the petitioner had committed the murder on account of Siahkari, and an order the east and according to law prevailing at the time of commission o offence the petitioner could not be saddled with any criminal liability. The factual controversy has already been resolved, therefore, we do not see any substance in the contention that the petitioner had not committed an offence amounting to moral turpitude.
12. ' It is now to be seen whether commission of murder amounts to moral turpitude or not. Besides the learned counsel for the parties we have had the advantage of bearing the valuable arguments of Mr. Basharatullah and Mr. Moquim Ansari who appeared as amicus curiae. The words "that injuries the moral fibre and lowers him down for moral values" are significant. It is contended by the learned A.-G., Mr. Basharatullah and Mr. Moquim Ansari that every murder do not come within the ambit of term "moral turpitude".
13. ' The learned A.-G. Has stated that if murder is justified then it does not amount to moral turpitude.
14. This contention has been supported by Mr. Basharatullah and Mr. Moquim. According to Mr. Moquim killing of a man falls under section 300, P. P. C. But there are exceptions to the general rule and if the case falls under the general exceptions then it does not amount to moral turpitude. In a tribal society "Siahkari" is a great stigma against the society and in fact it shocks all norms of society. There may be a society where adultery is not offence but in an Islamic society such act cannot be performed even by consent and severe punishment is provided for such an offence under the Islamic Law. Even society preaches ethics. Every body has a right that his person and property must be protected. Murder is not approved by any society. So also maintenance of public tranquility and keeping the society free from all evils are common to all societies. Islam propagates certain strict ethics. Greatest sanctity is given to human life. Suicide is considered to be a sin.
15. Human life is the property of the society. An offence repugnant to the standard of Islam involves moral Turpitude. Murder promoted by feeling of greed and enmity is repugnant to the ethical concept of Islam. Such action of a person would lower him down in the moral value of Islam. Mr. Moquim has stated that the standard laid down by Islam is t.Sdl{{URDU TEXT}} 2_14k). For the maintenance of healthy society gambling theft dacoity, bribery, drinking and unjust treatment of orphans are considered to be sins. There is no sin greater than the commission of murder. The society enjoys upon every citizen of State to respect the life of others. Killing of a man is not permissible unless permitted by law. There may be a murder with substantive motive. Ghazi Ilam Din and Ghazi Abdul Qayyum had also killed persons, but their actions are not prompted by any base motives. Their action was Supreme. Similarly a person who takes action in Jehad and kills a human being cannot be termed as a murderer which lower him down in the eyes of society we have now to see bow the authorities have interpreted the word "moral turpitude". In Saudagar Ali v.
16. Chairman, District Council, Multan and another (1). In this case the accusation against the petitioner was that he had, in the first place, fraudulently obtained the transfer of some evacuee land and when under the law he was required to make a declaration of such illegal possession of evacuee property, he not only violated the law by omitting to make a declaration but was certainly guilty of moral turpitude in trying
(1) PLD 1963 (W. P.) Lab. 601 secretly to retain his unlawful gain of the evacuee property. It was held in the case of the present petitioner in the circumstances is certainly evolves "moral turpitude". In Baleshwar Singh v. District Magistrate and Collector, Banaras and others (1) the following observations are worth consideration :- "The expression 'moral turpitude' is not defined any where. But it means anything done contrary to justice, honesty, modesty or good morals. It implies deprivity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude but it would be so if it discloses vileness or depravity in the doing of any Private and social duty which a person owes to his fellowmen or to the society in general. If, therefore, the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity.
17. It will be contrary to accepted customary rule and duty between man and man."
18. ' In Drug a Singh v. The State of Punjab (2) it has been observed that if a member of the Police Force is guilty of having been found drunk at a public place or to have become habituated to liquor and if he is convicted by a criminal Court under section 34, Police Act, 1861, his conviction should be held as involving moral turpitude.
19. The over all conclusion from the above discussion is that it has been held by the competent Courts that the petitioner was guilty of an offence under section 302, P. P. C. And his case does not fall under any of the exceptions. He was convicted for murder, therefore, his act amounts to moral turpitude. This act has injured the moral fibre of the petitioner and has lowered him down in the moral values of the society. The Petitioner is, therefore, disqualified to contest the ejection under section 21 (e) of the Baluchistan Local Council Ordinance-II of 1980.
20. ' The next contention of the learned counsel for the petitioner is that the petitioner had been convicted on 7th November, 1961, by the District Magistrate and sentence was confirmed by the Commissioner on 10th January, 1962, and thus more than 90 years have elapsed but he has been disqualified for ever and in fact the petitioner has been disfranchised. The learned counsel for the respondent has stated that he has not been disfranchised. He can cast vote but in view of position of law he cannot contest the election. The learned counsel for the petitioner has stated that this bar is not unreasonable. It may be unreasonable but the courts had to interpret the law as it exists and they have not to legislate the law, which is outside the function of the Courts. There is no ambiguity in the law. The intention of the law-maker is C quite clear. In Mujeeb Ullah Aijaz v. D. G. Telephone & Telegraph Deptt,I Islamabad and 2 others (3) it has been held that it is a cardinal principle of interpretation that inconvenience and unreasonableness cannot be
(1) AIR 1959 All. 71 (2),AIR 1957 Punjab 97
(3) PLD 1980 Quetta 5$ rightly attributed to the law. In order to resolve a seeming con-flit in law, the preamble and object of legislature can be looked into.
21. ' In the result we see no force in this petition the same is hereby di-missed with no order as to costs.