' AJMAL MIAN, J.-- The petitioner through this petition has prayed for the following reliefs:-
(1) Declaring that the order passed by the respondent No. 1 on representation made by the Defence Minister of Pakistan on behalf of the respondent No. 4 purporting to be an order under clause (d) of subsection (2) of section 37 of the Sind Local Government Second Amendment, 1983 to be without lawful authority and without jurisdiction and therefore of no legal effect.
(2) Declaring that the respondent No. 4 was lawfully disqualified to contest the election to the Local Council.
(3) Directing that the respondent No. 4 shall not act as Member of the Local Council Nos. 4 and 5, Shaikh Mohallah, Town Committee, Bhit Shah.
(4) That the cost of the petition be borne by the respondents and any other relief this Honourable Court deems fit and proper.
2. The brief facts leading to the filing of the above petition are that petitioner and respondent No. 4 and some other candidates contested election held on 29-9-1983 for seats Nos. 4 and 5 ,Block No. 3, Shaikh Mohallah, Town Committee, Bhit Shah. The respondent No. 4 was declared as elected. It may be pertinent to observe that prior to the election, Deputy Commissioner, Hyderabad in exercise of the powers contained in clause (d) of subsection (2) of section 37 of the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) disqualified respondent No. 4 on the ground that the respondent No. 4 was convicted by Summary Military Court, Hyderabad in Case No. 103 of 1983 of Hal Police Station under M.L.R. 9 read with section 307/337/333/358/147/148/ 149, P.P.C. and sentenced to undergo imprisonment for one year and fine. But respondent No. 1, by its order dated 24-9-1983 reduced the period of disqualification from three years to two years and also purported to set aside the above suo motu order passed by the Deputy Commissioner on 5- 9-1983. It may be advantageous to reproduce hereinbelow the above order which reads as follows:- "In exercise of power by clause (c) subsection (2) of section 37 of the Sind Local Government Ordinance, 1979, the Government of Sind are pleased to reduce the minimum period of three years to two years and to allow Sayed Ali Bux Shah alias Naz Latifi son of Sayed Bachal Shah, resident of Bhit Shah to contest election for electoral Units Nos. 2 and 3 of Town Committee, Bhit Shah.
' The Government of Sind are further pleased to set aside the suo motu order, passed by the Deputy Commissioner, Hyderabad and conveyed vide endorsement No. PA/Elec/ADLG/544, dated 5-9-1983."
' After the passing of the above order by respondent No. 1, the petitioner, respondent No. 4 and other candidates contested the election. The petitioner being aggrieved by the above order has filed the present petition.
3.(a) In support of the above petition Mr. Muhammad All Shaikh, learned counsel for the petitioner, has urged as follows:-
(i) That since the order passed by the Deputy Commissioner, Hyderabad on 5-9-1983 was an order in accordance with the Rules and as the same had acquired finality the same could not have been set aside by respondent No. 1.
(ii) That the order of reducing the period from three years to two years provided in clause (c) of subsection (2) of section 37 of the Ordinance is bad in law for the reason that it being discriminatory and that secondly the power can be exercised only in class or classes of cases and not in an individual case.
3.(b) On the other hand Mr. Naseem Farooqi, learned counsel for the respondent No. 4, has contended as under:-
(i) That the petition is not maintainable as the remedy, if any, available to the petitioner was an election petition in terms of rule 65 of the Sind Local Councils (Election) Rules, 1979 (hereinafter referred to as the Rules).
(ii) That the petitioner, in fact, is seeking the relief of quo warranto which cannot be granted at the behest of the petitioner he being a candidate for the office of the membership.
(iii) That the petitioner did not file any objection to the nomination paper and having participated in the election and having lost cannot come forward with the grievance that respondent No. 4 was not qualified.
(iv) That under clause (d) of subsection (2) of section 37 of the Ordinance, respondent No. 1 has the power to reduce the period, in any case, which includes an individual case.
3.(c) Mr. Sattar Shaikh, learned Additional Advocate-General has also contended that the impugned order is in consonance with clause (d) of subsection (2) of section 37 of the Ordinance.
4. It may be pertinent to take up first the question of maintainability of the above petition. It will suffice to observe that it has been consistently held that even in election matter a writ petition is competent A if it does not involve any disputed question of fact but involves interpretation of a provision of an Act or Rule. In this regard reference may be made to an unreported judgment dated 15-11-1984 given by a Division Bench of this Court in the case of Muhammad Saleem v.
Provincial Election Authority and others (Constitutional Petition No. 870 of 1983) in which reliance was placed on the following cases:-
(1) Wahid Bux v. Election Authority 1984 CLC 1294.
(2) Thakurdas v. Returning Officer and 3 others 1984 CLC 1024.
(3) Presiding Officer v. Sadaruddin and others PLD 1967 SC 569.
'In the present case as the construction of clause (d) of subsection (2) of section 37 of the Ordinance is involved and no disputed question of B fact is involved, we are inclined to hold that in terms of the above referred judgment the petition is competent.
5. As regards the second submission of Mr. Naseem Farooqi, that the petitioner being himself a candidate cannot seek the relief in the form of quo warranto, it may be observed that he has referred to the case of Haji Muhammad Siddiq v. Babu Karam Bakhsh and 3 others PLD 1971 Lah. 912 in which a Division Bench of the Lahore High Court while construing the provisions of the National and Provincial Assemblies (Election) Ordinance, 1970 inter alia observed that "an appropriate petition in the nature of quo warranto under Article 98 (2)(b)(ii) of the late Constitution may be instituted at the instance of a person other than a contesting candidate depending upon the facts and the circumstances of each individual case". In the present case the main relief sought by the petitioner is against the reduction of period of disqualification from three years to two years and therefore the above D petitioner cannot be held to be not maintainable for the reason that one of the prayers in the petition may be said to be in the nature of quo warranto.
6. Reverting to the main contention of the parties, it may be pertinent to reproduce clause (d) of subsection (2) of the section 37 of the Ordinance which reads as follows:- "37 (2)(d).- he has, on conviction for any offence, been sentenced to imprisonment and a period of three years or such less period as Government may, in any case specify, has not elapsed from the date of expiration of the period of sentence.
7. The controversy is, as to whether the words "in any case specify" used in the above clause cover classes of cases or it also covers an E individual case. It had been vehemently urged by Mr. Muhammad Ali Shaikh, learned counsel for the petitioner, that if we were to construe the above words as empowering the Government to reduce the period from three years in an individual case, it will be discriminatory and, therefore, this construction is not to be placed. On the other hand Mr. Naseem Farooqi, learned counsel for respondent No. 4, has contended that use of words "in any" preceding the word "case" is susceptible to a very wide meaning, which will not only cover a class or classes of cases but also an individual case.
8. We are inclined to hold that the words, "any case" employed in the above clause have very wide connotation susceptible to a meaning as to include an individual case. In this view of the matter, the Government has the power to reduce the period of three years even in an individual case. We may also observe that the disqualification of three years in fact is disfranchisement of a person for three years which is akin to a sentence in a criminal matter. Since there can be remission of sentence in a criminal case, on its analogy remission in the period of disfranchisement can be granted in an individual case particularly when such a construction to the quoted clause is possible.
9. The petitioner has not placed any material on record to indicate that at the same time some other disqualified persons had also applied for reduction of the above disqualification period and that the Government declined the request but granted the request of respondent No. 4.
10. Mr. Muhammad Ali Shaikh has referred to the following cases:-
(1) Habibullah v. Muhammad Firdaus etc.PLD 1967 Pesh.
206.
(2) Boman Abadan Irani and others v. Jehangir J. Mohed and others PLD 1967 Kar.
449.
(3) The Presiding Officer v Sadaruddin Ansari and another PLD 1967 SC 569.
(4) Haji Muhammad Siddiq v. Babu Karam Bakhsh and others PLD 1971 Lah.
912.
(5) Municipal Committee Bahawalpur v. Sh. Azim Elahi PLD 1970 SC 506.
(6) Messrs Fazal Shafiq Textile Mills Ltd. v. Rehmat Khan and another PLD 1972 Kar.
397. in support of his further contention that the provisions relating to election matters are to be strictly construed. It will suffice to observe that the above cases have no application to the present case.
The question in issue is as to whether beneficial construction of above clause (d) of subsection (2) of section 37 of the Ordinance XX is to be given as to include not only any class or classes of cases but also an individual case or whether to place the construction that has been urged by the learned counsel for the petitioner. In our view, it is a provision of penal nature and, therefore, it is to be construed in a manner which may reduce its rigour and may extend benefit to a large number of cases.
11. Reverting to the other contention of Mr. Muhammad Ali Shaikh that in the impugned order respondent No. 1 has not only reduced the period from three years to two years but also purported to set aside the aforesaid order of the Deputy Commissioner dated 5-9-1983, which cannot be done in exercise of the power contained in the above clause (d) of subsection (2) of section 37 of the Ordinance, we are inclined to agree with the above submission as under the above clause the only power conferred on the Government is to reduce the period of disqualification but there is no power to set aside the order as a whole. We would, therefore, declare the impugned order to the extent of setting aside the above order dated 5-9-1983 passed by the Deputy Commissioner as being without lawful authority but the first part of the impugned order which is material in the present petition as to the result of the election is in accordance with law. The petition stands disposed of in the above terms but with no order as to costs.