Mian Zahid Sarfraz filed the election petition to challenge the election of Raja Nadir Pervaiz Khan to the National Assembly from Constituency N.A. 69, Faisalabad-I I. Mian Zahid Sarfraz obtained 20, 092 votes whereas Raja Nadir Pervaiz Khan respondent polled 37,202 votes and resultantly he was declared elected having polled 17,110 votes more than the petitioner. The pleadings of the parties gave rise to the following two issues which in view of the provisions of section 62 of the Representation of the Peoples Act, 1976 read with clause (7) of the notification, dated 17th March, 1985 of the Election Commission of Pakistan were treated as preliminary issues:- (1)Whether the petitioner is not entitled to raise the objection of disqualification of respondent No. 1 on account of the alleged non-raising of the said objection at the time of scrutiny of the nomination papers, if so, what is its effect on the election petition; and (2)Whether respondent No. 1 was disqualified under the law being elected or chosen as a Member of National Assembly on account of his conviction by the Military Court and if so whether on account of such conviction which was well-known the respondent is not entitled to be declared elected by treating the votes cast in favour of respondent No. 1 as "thrown away votes".
2.Issue No. 1 was based on the preliminary objection taken by respondent No. 1 in his written statement. Issue No. 2 was framed in view of the averments contained in para. 2 of the merits of the petition, the reply of the para. Contained in the written statement and the statement of the learned counsel for respondent No. 1 noted in the proceedings, dated 2-11-1985. The relevant portion of the proceedings, dated 2-11-1985 reads as under:- "In the written statement filed by respondent No. 1 factum of conviction recorded by the Military Court has been accepted. Mr. Minto also concedes that the factum of conviction of respondent No. 1 was well-known to the electorate. He, however, adds that this is not sufficient for applying the principle of "thrown away votes".
It is appropriate at this stage to quote the relevant paras. 2 and 8 of the petition and the written statement:- Paras. 2 and 8 of the petition: "2. That respondent No. 1, namely, Raja Nadir Pervaiz was tried for treason in the famous Attock Trial and was convicted for the offence of treason and sentenced to seven years' rigorous imprisonment and was consequently dismissed from the service of Armed Forces of Pakistan in which he was employed as a Major at the relevant time. The said sentence awarded to respondent No. 1 was confirmed by the Chief of Staff of the Army on 1-3-1974. The said respondent No. 1 remained confined to Jail after the said conviction for about four years and later a remission of 36 months and 15 days in his sentence was granted to respondent No. 1 and he was finally released on 17-1- 1978. As a result of his conviction, respondent No. 1 was a person not-qualified, either on the day of nomination or on the day of election to contest the election and to be elected or choosen as member of parliament according to law. The election of respondent No. 1 is void on that score alone the petitioner is entitled to be declared as having been elected from the disputed constituency."
"8. That respondent No. 1 having worked against the integrity of Pakistan was a person not qualified to be elected or chosen as member of Parliament and further he being not qualified on the nomination day to be elected as a member, the election of respondent No. 1 is liable to be declared void by this august Tribunal and the petitioner is eminently entitled to be declared as having been duly elected from Constitutency NA-69 Faisalabad-II according to law, as respondent No. 1's lack of qualification/ disqualification was, notorious with the result that the voters who allegedly cast their votes in favour of respondent No. 1 have to be presumed, in law, to have thrown away their votes."
Paras. 2 and 8 of the written statement filed by respondent No. 1 read as under:- "2. The trial and conviction of the answering respondent by a Court Martial is not denied. The date of his release from prison may also be correct. The rest of the paragraph is incorrect and is denied."
"8. Denied.-- Neither was the answering respondent not qualified to be elected nor have the electorate thrown away as many as 37,202 votes."
3.In order to substantiate these preliminary issues, the petitioner besides appearing himself as a witness produced 4 witnesses, namely, Mian Mahboob Alam, Mian Zubair Aziz, Ghulam Mustafa Tabassam and Muhammad Zafar. These witnesses in their statements affirmed their affidavits Exhs. P.l to P.5 Mian Zahid Sarfraz also produced a telegram Exh. P.6 and its reply Exh. P. 7.
Respondent No. 1 neither entered the witness-box himself nor produced any evidence. The evidence on record need not be dilated upon as the evidence mostly relates to issue No. 1 which learned counsel for respondent No. 1 did not press at the time of arguments. Learned counsel for respondent No. 1 frankly conceded that the objection regarding disqualification can be raised before the Election Tribunal in an election petition as has been held in Sardar Khan v. Haji Abdul Ghaffar and 3 others PLD 1985 Quetta 167 and Rab Nawaz v. The Election Tribunal & 2nd Sind Labour Court and another PLD 1986 Kar.
46. The issue which thus requires determination is preliminary issue No. 2 only.
4. Mr. M. Arif, Advocate, counsel for the petitioner argued that the admission contained in para. 2 of the written statement read with the admission of the learned counsel recorded in the proceedings, dated 2-11-1985 are in law to be treated conclusive and hence the averment of the petitioner that respondent No. 1 was convicted for the "offence of treason" stands fully established with the result that the petitioner was disqualified to contest the election in view of the provisions contained in Article 10(1)(b) of the House of Parliament and Provincial Assemblies (Election) Order, 1977. He added as a matter of clarification that clause (g) of sub-Article (1), clause (saaa) and clause (b)(1) of sub-Article (2) of Article 10 of Presidential Order V of 1977 being inapplicable were not being invoked by him. He also referred to the affidavits Exh. P.1 to Exh. P. 5 wherein it has been stated that Raja Nadir Pervaiz was awarded 7 years' imprisonment by a Military Court on the charge of "Baghawat" and as such he was not competent to participate in the election.
5. In reply Mr. Abid Hassan Minto, counsel for the respondent argued that though the trial and the conviction of respondent No. 1 by a Military Court was not denied yet the position taken by the the respondent to participate in the election or to be a Member of the Parliament. He added that though in para. 2 of the petition the word "treason" has been used but neither in para. 2 of the written statement nor in the so-called admission contained in the proceedings, dated 2-11-1985 there was any reference to the offence for which the respondent was convicted. He added that conviction simplicitor has not been prescribed as one of the disqualifications in the relevant law.
According to him only the factum of conviction recorded by Military Court was accepted but not the charge or the offence for which the conviction was recorded. It was added that "treason" is not a word of law and there is no offence by the said name known to the penal laws of Pakistan and as such the respondent cannot be said to have admitted the conviction for the so-called "offence of treason". He argued that the respondent cannot be said to have admitted his conviction for the "offence of treason" which according to the learned counsel for the petitioner implied "working against integrity of the country, as wherever in the petition, allegation that the respondent had worked against integrity of the country was made, the same was in the corresponding paras. Of the written statement specifically and emphatically denied.
6.I have given serious consideration to the respective pleas and the arguments of the learned counsel for the parties. The principle that the admissions contained in the pleadings are conclusive was not seriously disputed by Mr. Abid Hassan Minto. The position taken by him, however, was that in election matters the provisions of the Code of Civil Procedure do not apply and an admission in the election matters can at best be taken as one of the circumstances to be considered along with the other evidence duly brought on the record. According to him, an election dispute though is a 'lis' between the parties yet the ultimate choice of the electorate cannot be allowed to be frustrated merely on the basis of admission of the parties which may have colluded to thwart the verdict of the electorate. He added that as the electorate holds vital interest in the outcome of an election dispute, specific rules as to the contents of the election petition, the grounds of challenge, the relief which can be granted and as to trial of election petitions have been framed by the law-maker. It is also significant that section 62 of the Representation of the Peoples Act, 1976 as originally enacted, provided that the election petitions are to be tried in accordance with the provisions of C.P.C. But the substituted section 62 provides that election petition is to be tried, subject to the provisions of the Act and the rules, in accordance with the procedure laid down by the Election Commission. It is also true that for the trial of election petitions notification, dated 17th March, 1985 of the Election Commission provides for summary procedure but the salutary principles based on logic, reason and fair play can legitimately be followed by judicial forums for determining the controversy raised before them. With respect to the effect of admissions made in the pleadings or during the proceedings in civil causes, the principle consistently followed is that for claiming judgment on admission contained in the pleadings, the admission has to be clear, unambiguous and unqualified. Again for this purpose document as a whole is to be read and if admission is accompanied by a qualification which has the effect of denying the right or the entitlement to the relief claimed then the admission cannot be treated as an unqualified admission and cannot be acted upon.
7. Keeping these principles in view, the admissions relied upon may now be examined. The averments as to conviction for the "offence of treason" were sought to be equated with the conviction for having worked against integrity of Pakistan. The sole plea of M. Arif, Advocate during the arguments was that the assertion as to conviction for "treason" meant and implied conviction for having worked against the integrity of Pakistan. If that was the implication of the averments contained in the petition then we have on record the preliminary submission No. 1 of the petition and its reply in the written statement. The preliminary submission reads as under:- "That respondent No. 1 alleged to have been returned as successful candidate in the Election for National Assembly of Pakistan held on 25-2-1985 from Constitutency N.A. 69, Faisalabad-II, was a person not qualified to be elected or chosen as Member of Parliament on account of his conviction for having worked against the integrity of Pakistan. The election of the said respondent No. 1 is liable to be declared void and petitioner is entitled to be declared as elected from the Constitutency NA- 69 Faisalabad-II, according to law."
The reply of the preliminary submission is as under:- "Denied. The answering respondent was not disqualified from contesting election to National Assembly held on 25-2-1985. He never worked against the integrity of Pakistan and his conviction by a Military Tribunal in 1974 did not bar him from contesting the election. In any case this objection was never taken at the time of filing/scrutiny of nomination papers nor was any appeal taken against acceptance of answering respondent's nomination."
8.A bare reading of paras. 2 and 8 of merits and para. 1 of preliminary submissions contained in the petition, together with the corresponding paras. Of the written statement make it abundantly bear that the contesting respondent did emphatically assert that he had never worked against the integrity of Pakistan. In the instant case it is obvious that the contesting respondent neither in the pleadings nor during the proceedings conceded that he had worked against the integrity of Pakistan, despite the fact that factum of conviction by a Military Court was admitted. It is also true that the averments as to conviction for the "offence of treason" contained in para. 2 of the petition were not specifically controverted. But the allegation that the respondent had worked against integrity of the country was controverted. In any case in the petition it was nowhere made out or clarified that allegation as to conviction for treason meant to convey the imputation that the respondent had worked against integrity of Pakistan. Moreover, the word "treason" has not been used in any of the sections (sections 120-A to 130) contained in Chapter V-A and Chapter VI of Pakistan Penal Code. Again Article 6 of the Constitution read with High Treason Act LXVIII of 1973 talks of the offence of "High Treason" and not of "treason". The definitions of the term "treason" in the English Disctionaries are not relevant as in the instant case we are concerned with the provisions contained in clause (h) of sub-Article (1) of Article 10 of the Presidential Order V of 1977. No law was referred by the learned counsel for the petitioner to show that any offence by the name of "treason" is known to the laws in force in Pakistan. "Treason" being not one of the offences made punishable by the penal laws of Pakistan, the non-traversing of the same specifically cannot be made a basis for culling out an admission. Moreover, the meaning of the said term (treason) was neither explained nor fixed in the petition itself. In these circumstances, it will not be fair and reasonable to bind down the respondent No. 1 with any such admission which was sought to be drawn by the learned counsel for the petitioner. M. Arif, learned counsel for the petitioner realising the situation noted above argued that the issues framed did not require the petitioner to prove the nature of the charge framed by the Military Court against the respondent or to prove the offence for which he was ultimately convicted. He stated that the contesting respondent was tried along with Brgd. F.B. Ali in the famous Attock conspiracy case and judgment in the case of F.B. Ali v. The State PLD 1975 SC 506 contains the charges framed against the accused persons. The first charge reproduced at page 514 of the report reads as under:- "Committing a civil offence, that is to say, conspired to wage war against Pakistan, and thereby committed an offence punishable under section 121-A of the P.P.C.
In that they together, between the period August, 1972 and 30th March, 1973, at Rawalpindi, Jhelum, Lahore and elsewhere formed a plot to overthrow the Government established by law in Pakistan by putting under arrest with the help of troops at their disposal, the President, the Governor of Punjab, the Ministers, all the Generals assembled in a conference and other officials holding key positions in the Administration and to assume power in the country for themselves, by means of criminal force."
In this respect the objection of Mr. Minto was that by making reference to the reported judgment, the charge for which the respondent was tried and convicted cannot be claimed to have been established. His case was that the respondent was convicted on account of his patriotism. He in this connection referred to certain publications in which the services rendered by the respondent during his Army service were eulogised. He added that the respondent participated in all the three Wars with India and was awarded "Satara-e-Jurrat" and that despite his conviction the award was not withdrawn.
The questions whether on the basis of the reported judgment, the findings that the respondent No. 1 was convicted under section 121-A, P.P.C. And that such a conviction has the effect of establishing the fact that the respondent No. 1 had worked against integrity of the country can be returned in the facts and circumstances of this case, have received my serious consideration. The first thing to be noted is that name of the respondent No. 1 does not appear anywhere in the judgment of F.B. Ali.
Secondly, this judgment was neither referred to in the petition nor relied upon in the documents attached to the petition. Thirdly, this judgment was referred to while addressing arguments in reply to the arguments advanced by Mr. Abid Hassan Minto, Advocate. The respondent No. 1 as such had no opportunity to present defence against the said judgment. Moreover, as the respondent has specifically asserted that he had never worked against the integrity of the country and as evidence has not been produced to substantiate this allegation it will not be reasonable to draw any inference as to the charge on which the respondent was tried or which the respondent was ultimately convicted by the Military Court. In the circumstances of the case, thealleged conviction by a Military Court, in the absence of cogent evidence, cannot be accepted as conclusive proof of the fact that respondent 1~ had worked against integrity of Pakistan. At this stage reference to section 121-A, P.P.C. May appropriately be made. This section reads as under:- "Whoever within or without Pakistan conspires to commit any of the offences punishable by section 121, or to deprive Pakistan of the sovereignty of her territories or of any part thereof, or conspires to overawe, by means of criminal force or the show of cirminal force, the Central Government or any Provincial Government shall be punished with imprisonment for life or any shorter term, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.
In this section conspiracy to deprive Pakistan of the sovereignty of her territories or of any part thereof is amongst others one of the ingredients of the accusation. This very allegation is conspicuously absent in the first charge (reproduced above) framed in the F.B. Ali's case.
9. The evidence brought on record in the shape of affidavits is to the effect that the contesting respondent was convicted on the charge of "Baghawat". These averments contained in the affidavits were not challenged in the cross-examination. Now the word "Baghawat" may imply anything. It may mean 'Baghawat' or revolt against the social order, against the form of Government against the Government establishment by law, against Superior Officers of the Army or against the State. It may mean mutiny. Now every "Baghawat" or "treason" does not necessarily imply working against integrity or opposing the ideology of Pakistan. The facts and the circumstances which may constitute the accusation of working against integrity or opposing the ideology of Pakistan came to consider in Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57. If the facts and circumstances noted in this report are kept in view, it becomes apparent that there is nothing on the record to show that the respondent No. 1 was involved in any activity which can attract the gravamen of the accusation, subject-matter of clause (h) of sub-Article (1) of Article 10 of the order. Even a charge of conspiracy to overawe and paralise the Government not involving criminal force does not fall under section 121-A of the Pakistan Penal Code. In fact in a democracy every citizen has a right to seek change of the Government through constitutional means. It is the unconstitutional means and acts or use of force and violence which have been made punishable. Now any and every act or series of acts may not amount to an offence unless these are so declared by the Penal law of the country. Assuming that the respondent No. 1 was convicted under section 121-A, P.P.C. On the basis of the charge reproduced above, still there is nothing on record to show that by taking part in the conspiracy to overthrow the Government and to assume power, the integrity of the country was sought to be jeopardised or undermined. It is also important to keep in mind that every conviction does not render a citizen disqualified to contest the election. It is only the prescribed conviction with the attendant conditions which renders a citizen disqualified to be elected or to be a Member of the Parliament or the Provincial Assembly. In the instant case such a disqualifying conviction has not been established.
10. The net result of the above discussion is that the respondent No. 1 has not been established to be disqualified to contest the election under clause (h) of sub-Article (1) of Article 10 of the Order.
The first part of the issue is, therefore, decided in favour of respondent No. 1 and against the petitioner. The second part of the issue resultantly has become redundant. The first issue is decided in favour of the petitioner. The result is that the petition will now be proceeded with on merits.