1. ' This Election Petition arises out of the election in respect of the seat for the Sind Provincial Assembly from PS-26-A Khairpur-I held on 28-2-1985. There were fourteen contesting candidates including the petitioner and the respondent No,2 in respect of this seat. As per the results declared by the Returning Officer/Respondent No,1, respondent No,2 secured 14,837 votes and the petitioner secured 9,364 votes. The other candidates secured a smaller number of votes than those two. The Returning Officer, therefore, declared respondent No,2 to have been duly elected. In this petition the petitioner has prayed inter alia that the election of the respondent No,2 be declared as disqualified and the petitioner be declared to have been duly elected and returned to Sind Provincial Assembly from PS-26-A Khairpur-I (hereinafter referred to as the said constituency).
2. ' As the petition is being disposed of only on the ground of disqualification, it will be sufficient to set out only such averments in the petition and the written statement and such facts as are relevant for determing of this issue. In the petition, it has been inter alia alleged by the petitioner that respondent No,2 was convicted by the Summary Military Court, Khairpur on 4-9-1983 for offences under sections 143, 147, 148, 109, 307, 353, P.P.C. And 13-D, Arms Ordinance and sentenced to suffer R.I. For nine months and fine of Rs,15,000 for which F.I.R. No,97 of 1983, dated 18-8-1983 was lodged.
3. The conviction of respondent No,2 was in respect of offences involving moral turpitude. The allegation against respondent No,2 inter alia was that he had set on are entire police station during M.R.D. Movement of August, 1983. He was thus not qualified under clauses (d) and (g) of Article 11 of the Houses of Parliament and Provincial Assemblies (Election) Order 1977 (hereinafter called the said Order). In paragraph 3 of the petition it is alleged that by participating in M.R.D. Movement of August, 1983 the respondent No,2 ridiculed the Armed Forces of Pakistan. As such he was disqualified from being elected under clauses (d) and (g) of Article 11 of the said Order.
4. ' In the written statement filed by the respondent No,2, it has been inter alia contended by the respondent No,2 that he is not disqualified under clauses (d) and (g) of Article 11 of the said Order. It has been alleged by respondent No,2 that the alleged F.I.R. Does not disclose any attribution of overt act against the respondent and/or without legal evidence of any participation in the alleged procession, the respondent No,2 cannot be implicated. It has been submitted that the alleged conviction did not attract the definition of "Moral Turpitude" and it was less than two years. The contents of para. 3 are denied as false and as such provisions of the said Order are not attracted.
5. The facts as disclosed by the complainant in the F.I.R. May be reproduced below for reference:- "At about 11-00 o'clock a procession headed by lmtiaz Khan Phulpoto was passing by Faiz Mahal towards Foupdari. In the beginning, it was quite peaceful; but on its return at about 12-30 p.m.
6. When the procession reached close to us, we came to know that the processionists had already broken the glass-panes of the Government offices with stones on the way. When the procession headed towards the National Bank, I, alongwith the police party stopped them, whereupon they got agitated and started stoning at the police party and attacking with Lathis and sticks of dates which they took out from the tractors and trolly. In self-defence and to protect the Government properties from damage, we used a, mild Lathi-charge, but they did not desist. Under the order of the S.D.M.
7. Present there, some tear-gas shells were fired. But in spite of it, they did not cease. One of the accused attacked me with knife and attempted to kill me but the sepoys present there, caught him and seized the knife. On our enquiry about his name and residence, he disclosed his name as Chanesar son of Faiz Muhammad Phulpoto resident of Danwaro, Taluka Khairpur. Thereafter, the persons who attacked the police with Lathis were also apprehended, who disclosed their names as
(1) Naban son of Shandad Sheikh resident of Garhi-Pull, Khairpur, (2) Muhammad Sidik son of Rustom Phulpoto resident of Atteri, Khairpur, (3) Shah Nawaz son of Ali Nawaz Phulpoto resident of Dawood Goth, Khairpur (4) Amir Bux son of Satabo Phulpoto resident of village Jumo Phulpoto Taluka Khairpur, (5) Manzoor son of Muhammad Sachal Phulpoto resident of Khedo village Khairpur, (6) Ali Nawaz son of Kadir Bux Phulpoto resident of Khedo village, Khairpur."
8. ' On the basis of the said F.I.R. (Exh. 7/2), a case under M.L.R. 5, M.L.O 77 and M.L.R. 36 against the respondent No,2 and others was sent up for trial before the Summary Military Court No,7, Khairpur.
9. The respondent No,2 was convicted and was awarded nine months' rigorous imprisonment and a fine of Rs,15,000 was imposed by the said Military Court on 31-8-1983. He served out the said sentence. The fine of Rs,15,000 which he was ordered to pay was remitted on the petition of his mother. He also filed review petition before the Martial Law Administrator Zone 'C', Karachi which was rejected.
10. ' Since the controversy turns, to a large extent, to some of the provisions of the said Order it would be useful to reproduce Article 10(2) (aaaa) (b) (1) and (g) and (2) which reads as under as: "(aaaa) If he is propagating any opinion or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or
(b) if--------------
(i) he has been, on conviction for any offence which in the opinion of the Commissioner involves moral turpitude sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or
(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; and"
11. Under clause (aaaa) of sub-Article (2) of Article 10 of the said Order, a person stands disqualified from being elected or chosen as, and from being, a member of Parliament, if he is propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary or the Armed Forces of Pakistan.
12. A bare reading of the Article would show that a person would be disqualified from being elected or chosen as, and from being member of Parliament or Provincial Assemblies if he was acting in any A manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan or acting in any manner prejudicial to morality.
13. ' The word "morality" has not been defined in the said Order.
14. The scope of the word "immoral" was considered by the judicial committee of the Privy Council in Beneficed Uerk v. Lec (1897) A C 226. The precise point in that case was whether "simony" is immorality within the meaning of the Act. It was held that "it was not but Lord Halsbury, in 'delivering the judgment of the Committee, explained the effect of the reference to the two canons. He said "the language of these canons denounces offences which the 109th canon sums up as 'uncleanness and wickedness of life, but it goes further, and it condemns acts and conduct hardly to be considered immoral, but certainly dangerous to the reputation or unworthy of the character of ministers of religion. It appears to their Lordships that in this applying and extending the use of the term "immoral" the Act shows that "the intention was to confine its scope to offences of the kind referred to in these canons". The office of the Judge was prompted by Sweet and others v. Young 1902 Probate 37. The facts of the case are that Mr. Young went after 12 at night at the Alistian Club and stayed there three quarters of an hour, talking and joking with prostitutes. It was held that Mr. Young's conduct so "dangerous to the reputation and unworthy of the character of ministers of religion". The Chancellor held "I have not to decide whether the mere fact of a clergyman being in such a place, however, regrettable, would be enough to create an offence under this Act. I can conceive circumstances which might explain or justify his presence. But I think that under the circumstances proved in this case, Mr. Young's presence and action at this place constitute so "dangerous to the reputation and unworthy of the character of ministers of religion to quote Lord Halsbury's words as to be contrary to the 75th and 109th cannons, and, therefore, an offence against the laws ecclesiastical as well as an offence against morality within the meaning of the Clergy Discipline Act, 1892". In the same manner, the retention by a member of Parliament or member of Provincial Assemblies seat where he does not possess or has lost the qualification to represent the same and his legal character as such representations has ceased, is immoral conduct and it cannot be said that he is not acting in a manner prejudicial to morality. In my view by clause (aaaa) of sub-Article (2) of Article 10 of the Order the member is disqualified to be a member of the Parliament or member of Provincial Assembly.
15. The words "Moral Turpitude" are an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general contrary to the accepted and customary rule of right, and duty between man and man. Its various meanings cover about 13 pages of Words and Phrases, Permanent Edition, Volume 27, A published by St. Paul, Menn West Publishing Co. But I take as the most relevant portions for the purposes of this case the following: P.188 "The crime of issuing a non-fund check on a bank with intent to defraud, knowing at the time that the maker or drawer had no account or deposit in bank, is a felony involving "moral turpitude" and therefore, disbarment of attorney convicted of such crime is authorized. State ex rel. Nebraska State Bar Ass'n v. Stanosheck 92 N.W. 2d 194, 197, 167 Neb.
16. 192."
17. ' P.188 "Moral turpitude" in its ordinary sense involves the idea of inherent baseness or vileness shameful wickedness; depravity; in its legal sense it includes everything done contrary to justice, honesty, modesty or good morals. Huff v. Anderson, 90 S.E. 2d 329, 331, 212 Ga. 32,
52. A.L.R. 2d 1310".
18. ' P.190 "Conviction charge, under New York Penal Law of frequenting or loitering about a public place and soliciting men for purpose of commiting a crime against nature or other lewdness was a conviction for crime involving "Moral turpitude" within meaning of deportation statute, though such violation of New York Penal Law was denominated therein as disorderly conduct and classified as an offence as distinguished from a crime. Wyngaard v. Rogers D.C.D.C., 187 F. Supp. 527, 528."
19. ' P.202 "Interference with military forces--The crime of aiding another to avoid registration committed by counselling and advising young men subject to registration to not register for military service as required by the Act of Congress approved May 18, 1917, c. 15, 40 Stat. 76, 50 U.S.C.A.
20. 5.226 note, thereby seeking to interfere with the Government of the United States in its efforts to raise an army in time of war, involves "moral turpitude". In re Hofstede, 1973 P.1087, 31 Idaho.
21. 448.
22. ' If a citizen of the United States of America, at a time when our country is at war, knowingly and wilfully makes false statements with intent to interfere with the success of its military and naval forces and with intent to promote the success of its enemies, or wilfully attempts to cause disloyalty, insubordination, mutiny, and refusal of duty in its military and naval forces, or wilfully obstructs its recruiting and enlistment service, his conduct involves moral turpitude. In re Kerl, 188 p.40, 42, 32 Idaho, 737, 8 A.L.R.
23. 1259."
24. ' In Rammnatha Aiyar's Law Lexicon the phrase is defined as follows:- "Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general contrary to the accepted and customary rule of right and duty between man and man.
25. ' A term not clearly defined what constitutes moral turpitude, or what will be held such, is not entirely clear. A contract to promote public wrong, short of crime, may or may not involve it. If parties intend such wrong, as where they conspire against the public interests by agreeing to violate the law or some rule of public policy the act doubtless involves moral turpitude. When no wrong is contemplated but is unintentionally committed through error or judgment, it is otherwise.
26. Everything done contrary to justice, honesty, modesty, or good morals is done with turpitude, so that embezzlement involves moral turpitude."
27. ' At page 1200 of Corpus Juris Secundum, Volume LVIII it is obsery as under: 'Moral turpitude' is not a new term but, rather, it is a term which is old in the law, and which has been used in the law fo centuries. It is a term which has been the subject of man decisions and which has been much defined by the Court; bu its definition does not gain in clarity by prolixity of statement.
28. ' At page 1201 it is further observed: "As a legal term, 'moral turpitude' is defined as the quality of a crime involving grave infringement of the moral sentiment the community as distinguished from statutory male prohibita."
29. ' At page 1202 it is stated: "Moral turpitude often involves the question of intent, and as a general rule unintentional wrong, or an improper act done without unlawful or improper intent, does not carry with it the germ of moral turpitude."
30. At page 1202 it is observed: "Moral turpitude implies some thing immoral in itself, regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not crime. It must not merely be male prohibita, but the act itself must be inherently immoral."
31. "It involves as act of inherent baseness in the private, social, or public duties which one owes to his fellowman or to-society, or to his country, her institutions, and her Government; and refers to conduct which is inherently base, vile, or depraved, and contrary to accepted rules of morality."
32. ' At page 1205 it is further observed: "Offences against the revenue laws, such as defrauding the Government of taxes, imposed on intoxicating liquors, or smuggling, have been held to be crimes involving moral turpitude."
33. ' At page 1205 it is further observed: "Embezzlement, forgery, robbery, and swinding are crimes which denote moral turpitude: and as a general rule, all crimes of which fraud is an element are looked' on as involving moral turpitude.
34. Thus concealing assets in bankruptcy, obtaining goods on false representations, and other crimes involving fraud are usually regarded as showing moral turpitude."
35. ' Article 10 of the said Order uses the word "disqualification" and the meaning given to this words in Webster's Third New International Dictionary is: "(i) the act of disqualifying or the state of being disqualified. (ii) Something that disqualifies or incapacitates."
36. The word 'disqualify' is also stated to mean making some one unfit for some thing. The further meaning given is that the person may be deprived of any right or privilege.
37. ' The sole question calling for decision in his petition is whether the conviction of the respondent No,2 can be considered within the meaning of clause (g) of sub-Article (1) of Article 11 of the said Order to be 8 conviction of an offence involving moral turpitude as to disentitle him to remain a member of Sind Provincial Assembly.
38. ' The learned counsel for the petitioner was unable to cite any direct authority for the proposition that conviction under M.L.R.
5. M.L.O. 77 and M.L.R. 36 should be taken to amount to moral turpitude within the statutory provision but he referred to the following decisions in which there was some discussion of the expression "moral turpitude".
(1) In the matter of Mr. Tasadduq Ahmad Khan Sherwani AIR 1922 All. 140 where the Full Bench consisting of Messrs C.J. Banerjee and Rafique, JJ. Held that moral turpitude is always involved in the commission of an act which comes within that section (S.153-A, Penal Code) and may involve an offence of the deepest moral turpitude. They also held that, "the case in the Magistrate's Court could not be reopened in these proceedings and we referred to the decision of the Privy Council in the matter of Rajandra Math Mukarji".
(2) In Durgasing v. The State of Punjab AIR 1957 Punjab 77 Mr. Bishan Narain, J. Interpreted the term 'moral turpitude' as under:- "After all the term "moral turpitude" is a rather vague one and it may have different meanings in different contexts. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellowman or to society in general. It has never been held that gravity of punishment is to be considered in determining whether the misconduct involves moral turpitude or not. Even if the words 'involving moral turpitude' are held to be implied in 'conviction on a criminal charge' in proviso to Article 311(2) it appears to me clear 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, then his conviction should be held as involving moral turpitude. It appears to me rather incongruous that persons who are habituated to liquor and are found drunk in public places should be allowed to remain in Police Force to bring such persons to book. I have, therefore, no hesitation in rejecting this contention on behalf of the petitioner. I accordingly hold that the petitioner in the present case was not entitled to protection under Article 311(2) of the Constitution."
(3) In Saudagar Ali v. Chairman, District Council, Multan PLD 1963 Lah. 601 Mr. Sajjad Ahmed Jan, J.
39. Defined the term "Moral Turpitude" as follows- "The expression 'moral turpitude' is not defined in the Basic Democracies Order, nor any other statute, but as generally understood anything which is done contrary to the good principles of morality involves moral turpitude, i.e. Anything that injuries the moral fibre of a person and lowers him down in moral values. In Famanatha Aiyar's Law Lexicon the phrase is defined as follows: "Anything done contrary to justice, honestly, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."
40. ' On the other, hand Mr. Khalid Ishaque, the learned counsel for the respondent No,2 cited the following decisions:-
(i) Baheshwar Sing v. District Magistrate and Collector of Banaras A. I R 1959 All. 71 wherein a question arose as to whether conviction under section 182, Penal Code for making a false report was in respect of an offence involving moral turpitude and in answering this question in the affirmative Mr. J.K. Tandan, J observed.
41. "The expression 'moral turpitude' is not defined anywhere, but it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character of 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."
(ii) In the case of Mangeli v. Chhakki Lal AIR 1963 All. 527 Mr. A .P. Srivastava, J. Laid down the following tests:- "(1) whether the act leading to a conviction was such as could shock the moral conscience of society in general.
(2) whether the motive which led to the act was a base one, and
(3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society."
(iii) In Risal Singh v. Chandgi Ram and others AIR 1966 Punjab 393 the facts were that Chandgi Ram contested the election to the seat of the Pradhan of the Gon Panchayat and he was declared elected. Risal Singh appellant challenged the election on the basis of the fact that Chandgi Ram had been convicted of an offence under section 19 (f) of the Arms Act and that he was not qualified to stand for the election and his nomination papers had been improperly accepted. He filed election petition before the Election Tribunal. The Election Tribunal held that he was not qualified to stand for the election and his election was held invalid. Chandgi Ram came to the Punjab High Court by way of a writ. A learned Single Judge held that the possession of an unlicensed revolver could not amount to moral turpitude and the writ was allowed. The appellant filed Letters Patent Appeal against the order. The Division Bench held that the tests which were laid down in Mangal's case (quoted hereinabove) were kept in view, 'I do not see how it can fairly be said that the offence of which Chandgi Ram had been convicted involved moral turpitude.' The learned Judges held: "On the facts of the case before us, we are unable to find any error in the view of the learned Single Adge that the offence for which Chandgi Ram respondent was convicted implied no such depravity and wickedness of character or disposition which would involve any moral turpitude. As observed by the learned Single 4udge, people keep fire-arms for their personal safety and sometimes they resort to keeping arms without a licence when they feel that their status in society is not such as would enable them to get a licence from the authorities. No doubt they commit a contravention of the law, but it cannot necessarily be postulated that this contravention involved moral depravity and 'illness of character."
(iv) In the case of Muhammad Shabbir Abbasi v. Abdul Rashid Mughal 1984 CLC 270 the facts were that Abdul Rashid respondent was declared to the seat of a Councillor from Ward No,8, Municipal Committee, Murree. Shabbir Abbasi challenged the election on the ground that he was convicted and sentenced in a criminal case and was, therefore, disqualified from contesting the said election.
42. A Division Bench of Lahore High Court allowed the petition aid declared that Abdul Rashid stood disqualified to be a member of the Municipal Committee. Abdul Rashid filed Petition f#r leave, to Appeal against the judgment before the Supreme Court. Leave was granted. The Hon'ble Supreme Court while acceptiag appeal observed as follows: "It is obvious that in the absence of any legal evidence reamed Judges were somehow persuaded to hold, merely on the basis of the contents of the F.I.R., that appellant was convicted for an offence involving moral turpude. Unfortunately they failed to notice -that both the documents produced in support of the allegations against appellant, namely F.I.R. And certificate from Deputy Superintendent, District Jail, Rawalpindi, were in admissible evidence and by themselves, furnished no proof upon which a conclusion could,- be drawn, much less a judgment rendered, that appellant was held guilty and convicted for an offence involving m ral turpitude."
(v) In Mian Shahbaz Ahmed v. Haji Muhammad Tariq and others 1985 SC MR 227 the petitioner filed an election petition alleging the following disqualifications against the respondent Muhammad Tariq:
(i) The respondent No,1 is a known office-bearer, worker and activist of the defunct-Pakistan Peoples Party.
(ii) On a number of occasions, he has been arrested and detained for his anti-State and subversive activities.
(iii) That there were inadequate polling arrangements; large proportion of voters were deprived of their right to record their vote.
43. ' The election of respondent 'No,1 was declared to be void and the petitioner was declared to be duly elected candidate. The. Constitution Petition filed by the respondent No,1 was allowed by the Lahore High Court. The petitioner filed Petition for Special Leave to Appeal before the Supreme Court. The Hon'ble Supreme Court while refusing leave to appeal observed as follows: "It had to be proved by an affirmative evidence not only that the respondent No,1 .Was a member of the political party like the Pakistan Peoples Party but also that he held a post on the Executive Committee at any of the tiers mentioned in the disqualification clause. The evidence led with regard to the application made by the petitioner to the Governor shows that he all the time represented himself to be the office-bearer of a welfare society and not of a political party and he sought exemption at it stage when the Returning Officer had rejected his nomination paper on the ground of his being an office-bearer and he sought intervention of the Governor to be relieved of the supposed disqualification. There was neither an express admission nor could it be implied that he was an office-bearer of the description provided in clause (h). Except for the statement of the petitioner during proceedings before the Election Tribunal, there was nothing else to bear it out. The Election Tribunal has not specifically held the respondent No,1 to be diaqualified under clause (h) but has proceeded to hold that after the refusal of the Governor no authority could permit him to contest the election.
44. ' The refusal of the Governor did not by itself create a disqualification but was dependent on a disqualification already incurred. The High Court, therefore, was correct in observing that the, finding of the Election Tribunal was conjectural and based on surmises.
45. ' As regards the second disqualification though the allegation in the election petition was that the respondent No,1 had been on a number of occasions arrested and detained for 'his anti-State and subversive activities the only evidence led was of his conviction by a Summary Military Court more than three years before the election. The F.I.R. Was put in evidence to prove the nature of the allegations against, him. The judgment of the Summary Military Court or the charge levelled against him were not put in evidence. The conviction by itself could be of relevance if it had taken place within three years of the election. However, as it did not affirmative evidence had to be brought to demonstrate that the respondent No,1 was engaged in 'Activities directly or indirectly prejudicial to the interest, security, integrity or solidarity of Pakistan. Infraction or Martial Law Regulation and conviction thereof could not by itself lead to any such conclusion unless evidence was given of the exact nature of allegations levelled and proved against the respondent. The proof furnished by the petitioner was deficient by all standards to disqualify a duly elected candidate."
46. ' In the present case, the respondent. No,2 was tried by the Summary Military Court No,7, Khairpur, under Martial Law Regulations 5 and 36 and Martial Law Order No,77 on the ground that during M.R.D. Movement on 18th August, 1983 there was a procession led by respondent No,2. The charge- sheet slip (Exh. 7/8) would show that respondent No,2 was convicted and sentenced to rigorous imprisonment for nine months and he was ordered to pay a fine of Rs,15,000 or in default of payment of fine, he would suffer rigorous imprisonment for three months.
47. ' The petitioner filed his affidavit-in-evidence and adopted contents of election petition. He stated in para. 3 of the affidavit-in-evidence that "I say that the respondent No,2 after being convicted by Summary Military Court for an offence involving moral turpitude stood disqualified from being elected as member of Provincial Assembly. Such fact of his conviction was known to entire constituency, and the votes secured by him were thrown away votes. Since, I secured second highest votes, therefore, I am entitled to be declared as duly elected from the constituency, and my prayer to that extent may kindly be granted." The petitioner was cross-examined by the learned counsel for the respondent No,2. The petitioner to a suggestion in cross-examination stated that: "I have not published any pamphlet showing that the respondent No,2 is a convict from: Summary Military Court and I have also not issued any statement to any newspaper. Voluntarily says that every one knows that he is a convict. I did not file any appeal before the Appellate Authority against the acceptance of his nomination paper. Voluntarily says that I was under "the impression that Government will itself declare him as disqualified. I do not remember the date of taking out procession by the respondent No,2. On that day I was in Khairpur. I did not witness the procssion. I only heard that there was a procession and I saw the F.I.R. To this effect. I was not made Mashir or witness in the Military Court in the said case, I have no personal knowledge about the proceeding. I tried to obtain certified copy of the judgment passes by the Military Court but I could not obtain the same. I do not know the findings of the Military Court."
48. ' P.W.2 Manzoor Ahmed (Exh. 7) stated in his examination-in-chief t at "on 18th August, 1983 during M.R.D. Movement there was a procession led by Sardar Imtiaz Khan Phulpoto. He is present in Court. .11.0. Baberloi Police Station lodged a F.I.R. Against respondent No,2 and other persons. I produce attested true copy of the P.I.R. As I .h.7/1. I recorded statement of 5 or 6 witnesses. I produce the statements of the witnesses as Exhs. 7/2 to 7/7. I filed challan against respondent No,2 on 22nd "ugust, 1983 before Summary Military Court No,7. The statements of the witnesses xere recorded before the Summary Military Court. The respondent No,2 was convicted by the Summary Military Court to R.I. For nine months and fine of Rs,15,000. I produce photostat copy of the conviction slip as Exh.7/8 and also produce letter Lssued by S.P. Addressed to D.I.-G. Sukkur Range, Sukkur as Exh.7/9. I produce certified copy (Mr. M.L. Shahani has produced from his own record) as Exh.7/10. It is cc,Tect that after conviction respondent No,2 was lodged in Central Jail, Khairpur. (This document handed over by Mr. M.L. Shahani from his own record) I produce it as Exh. 7/11." The P.W.2 to a suggestion in cross-examiration stated that "all the accused persons were convicted under M .L. R.
5. M.L.O. 77 and M .L.R .36. I cannot say that a particular person was convicted under a particular M.L.O."
49. ' It is an admitted position that mother of the respondent No,2 filed petition and on her petition a fine of Rs,15,000 was remitted. It is also an admitted position that the respondent No,2 filed Review Petition (Exh.8/11) before the Martial Law Administrator, Zone 'C', Karachi, which was also rejected. It is also an admitted position that he was admitted in Central Jail, Khairpur on 4th September, 1983 (Exh.7/11).
50. ' The deposition of the P.W.2 would show that during the trial of the respondents No 2, 5 or 6 witnesses were examined by the prosecution, all of whom supported the allegations made in F.I.R.
51. (Exh.7/1) that the respondent No,2 led the procession. In view of the said evidence, the Summary Military Court found the respondent No,2 guilty and convicted him as aforesaid. Martial Law Regulation No,5 lays down that:- "No person shall organize or convene or attend any meeting, not being a religious congregation, in an open public place, or organize or take out a procession, not being a religious, funeral or marriage procession, without the prior written permission of the Martial Law Administrator concerned.
(2) No person shall attend or otherwise take part in any meeting or procession organized or convened or taken out in contravention of paragraph 1 of this regulation.
52. Explanation 1.--In this regulation 'open public place' includes any tent, enclosure of other structure of temporary nature erected or constructed in a public place for the purpose of meeting.
53. Explanation 2.--A 'meeting' includes political meeting, Trade Union meeting, Students' Union meeting or any other meeting involving discussions on any topic of political nature.
54. ' Maximum punishment 7 years rigorous imprisonment, fine and/or whipping not exceeding 10 stripes.
55. ' Martial Law Regualtion 36 says that:-
(1) Whoever abets the commission of an offence punishable with death or imprisonment for life shall if that offence be not committed in consequence of the abetment and no express provision is made by any Martial Law Regulation or Order or any other law for time being in force, be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine and/or whipping.
(2) Whoever attempts to commit offence punishable with death or imprisonment for life and in such attempt does any act towards the commission of the offence shall, if no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force, be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine and/or whipping.
(3) Whoever abets the commission of an offence punishable with rigorous imprisonment shall, if that offence be not committed in consequence of the abetment and no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force for the punishment of such abetment, be punished with rigorous imprisonment for a term which may extend to one-third part of the longest term provided for that offence, or with such fine as is provided for that offence or with both and/or whipping.
(4) Whoever attempts to commit an offence punishable with rigorous imprisonment and in such attempt does any act towards the commission of the offence shall, if no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force for the punishment of such attempt, be punished with rigorous imprisonment for a term which may extend to one-third part of the longest term provided for that offence, or with such fine as is provided for that offence or with both and/or whipping.
(5) Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by any Martial Law Regulation or Order or any other law for the time being in force for the punishment of such abetment, be punished with the punishment provided for the offence.
56. Explanation I.--An act or offence is said to be 'committed in consequence of abetment, when it is committed in consequence of the instigation or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
57. Explanation II.--When an act is abetted and a different act is done, the abettor shall be liable for the act done, in the same manner and to the same extent as if he had abetted it provided the act done was a probable consequence of the abetment.
6. Martial Law Regulation No,2 is hereby cancelled."
58. ' Similarly Martial Law Order 77 lays down that:-
(1) This Martial Law Order, hereinafter, referred to as this Order, shall come into force at once.
(2) (1) This Order shall have effect notwithstanding anything contained in any other law for the time being in force or any judgment of any Court, including the Supreme Court or a High Court.
(2) ..........
(3) A Military Court, constituted under Martial Law Order No,4, shall have power and jurisdiction to try and punish any person for the under-mentioned offences notwithstanding that any of the said offences is exclusively triable by a Special Tribunal or Special Judge or any other authority. Or body under any law special or otherwise:-
(a) treason, subversion, sedition, sabotage, prejudicial activity and seducing members of Armed Forces or persons in the service of Federal Government or Provincial Government or in the service of any autonomous or semi-autonomous body in which the Federal Government or a Provincial Government has an interest; (b)
59. (c)
60. (d)
61. (e)
(f) contravention of any Martial Law Order or Martial Law Regulation.
62. Explanation 1.--Any of the above-mentioned offences shall, if not punishable under any of the existing Martial Law Regulations, for the purposes of this Order, be deemed to be an offence under a Martial Law Regulation and be punishable with any of the punishments provided for in Martial Law Order No,5.
63. Explanation 2. --"Prejudicial activity" shall include to bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection towards Martial Law Administration or any member thereof."
64. It would thus be seen that by the type of allegation made against him by the prosecution, the respondent No,2 clearly brought himsel within the mischief of the said two Martial Law Regulations.
65. The Summar Military Court has found that the respondent No,2 had indeed led th procession and raised slogans and there is nothing on record t controvert the said finding. In these circumstances it cannot be said that he was not convicted for crime.
66. ' From the consideration of the Dictionary meaning of the words "Moral Turpitude" as well as the ratio decided of the cases, the principle that merges appears to be that the question whether, a certain offence involves moral turpitude or not will necessarily depend on the circumstances in which the offence is committed. It is not every punishment that can be considered to be an offence involving moral turpitude. Had that been so, the qualification "involving moral turpitude" would not have been used by the Legislature and it would have disqualified every person who had been convicted of any offence. The tests which should ,ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appear to be:
(1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general;
(2) whether the motive which led to the act was base one, and
(3) whether on account of the act having been committed the perpetrator could be considered to be of depraved character or a person who was to be looked down by the society.
67. On the facts of the case before me, I am of the view that the offence for which respondent No,2 was convicted that he was not only organizing a procession but led the procession which was prohibited by Martial Law Regulation No,5. The respondent No,2 violated the provision of Martial Law Regulation No,5, the act doubtless involves moral turpitude.
68. ' I am of the view that the Tribunal cannot examine the evidence on which the conviction or the perpetrator's plea of guilty is based but must resort to the statutes or the Martial Law Regulations to define the particular character of the crime, moral turpitude being defined as an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society.
69. A duty has been cast on individuals not to act or organize procession which is prohibited by Regulation No,5. This is a duty which every individual or citizen who is governed by the above laws owes to the society whose member he obviously is. An individual's conduct in organizing a procession in the circumstances stated in Marti Law Regulations is, therefore, contrary to justice, honesty and good morals and shows depravity of character and wickedness.
70. This provision in Article 11 of the said Order is based on sound and reasonable principle. When a person is convicted in an offence involving moral turpitude, he cannot be permitted to take any part in any act or proceedings of the Parliament or Provincial Assemblies and the Legislature in its wisdom thought it proper to empower the Returning Officer or the Election Tribunal to disqualify such person.
71. ' The last submission of the learned counsel for the petitioner is that the election of respondent No,2 is void on the ground that he is disqualified from being elected from .Constituency No,PS-26-A, Khairpur for the seat of Sind Provincial Assembly and the petitioner is entitled to be declared elected in accordance with section 69 of the said Act.
72. ' In this connection it will be beneficial to reproduce section 69:- "Ground for declaring a person other than a- returned candidate elected.--The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other' contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected."
73. ' The petitioner secured 9,364 votes as against the respondent who secured '14,837 votes. In this context paragraph 930 of the Halsbury's Laws of England Volume 15, Fourth Edition which has been repeatedly referred to in all the leading judgments on the subject, is relevant which is reproduced hereunder:- "930. Votes given to a disqualified 'candidate.--Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away, and to decide this a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being a Peer, alien or minor, or a person convicted of an offence and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence. For the votes given for a candidate to be thrown away, the voters must, before voting, either have had or be deemed to have had notice of the facts creating the candidate's disqualification, and is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good, if, after deducting the votes given after such notice from the total number of votes given for the disqualified candidate, the remains in a majority, the minority candidate cannot take the seat and there must be a fresh election."
74. ' The entitlement of a candidate securing the second highest votes to be declared elected, was examined by the Hon'ble Supreme Court in Syed ... Voter of this country, it cannot be disputed that the disqualification was not so apparent and notorious as to justify the inference of wilful perverseness on the part of the electors who voted for the appellant to cast away their votes. The disqualification was certainly based on "complicated facts and legal arguments" and as such did not justify the disenfranchisement of about 10,000 votes. The same view was taken by this Court in a recent judgment delivered whereby Lai Muhammad v. Usman Kennedy etc. (Petitions for Special Leave 'to Appeal Nos.K-138), Muhammad Usman Kennedy v. Lal Muhammad etc. (K-143 of 1974arising out of the same election to the Sind Provincial Assembly and directed against the appellate order of the High Court were dismissed vide judgment, dated 17th December, 1974 wherein a reference was also made to the High Court's judgment the instant case. It appears, however, that in its judgment in the latter &tat which wag upheld by this Court, the High Court did appreciate that it had not taken note of this Court's decision in Rashid Ahmed v. Barkat Ati PLD 1968 SC 301 wherein the general principles contained in paragraph 542 of Halsbury's Laws of England Volume 14 were approved."
75. ' In Abdul Ghani v. Mumtaz Hassan 1986 SCMR 1701 the Hon'ble Supreme Court held as under:- "In view of the above-noted principle, which Saeed Hasan v. Pyar All and 7 others PLD 1976 SC 6. In that case the appellant had been declared elected as a member of the Sind Provincial Assembly in 1970 having polled 9,800 votes as against 6,965 and 6,951 votes polled by respondent Pyar Ali and Lutufullah. The election was challenged by means of an election petition. The election of appellant was declared to be void and further Pyar All was held to be entitled to be duly elected. Dealing with the later issue, the Hon'ble Supreme Court had occasion to examine the provisions of section 66 of the National and Provincial Assemblies (Election) Ordinance, 1970, which provide that where the election of a returned candidate is declared void and the Election Tribunal is satisfied that the candidate who secured the net highest votes is so entitled, may declare him to be elected. Their Lordships of the Supreme Court examined the meaning of the word's 'satisfied' and 'entitled'. The provisions of section 69 of the Representation of the People Act, 1976 are in the terms pari materia with section 66 above referred. It is advantageous to reproduce the relevant observation: "Thus, having regard to the much belated time of printing and distribution of the pamphlet, namely, the eve of the poll and the conspicuously meagre evidence on the point of circulation, we are of the view that it did not justify the inference drawn by the Tribunal that but for the pamphlet respondent No,1 would have swept the polls. Even otherwise, having regard to the level of legal knowledge and awareness of the average 'had been followed by this Court in cases referred to in paragraph No,7 above what is to be seen by us in the present case is whether the fact constituting the disqualification, namely, that the appellant was employed as a School, teacher in a Primary School run by the Government was well known and whether at the time of polling, the voters considered him to be a school teacher or they knew that having resigned from the said, post, he was now a milkman by profession, as shown in the relevant column of the electoral roll, against his name. The question would turn upon the knowledge that the voters can be deemed to have had as to the appellant's profession or vocation because if they voted for him as a school teacher it will then be fair to infer that the voters were wilfully, perversing in casting their voters in his favour despite this knowledge, even if it cannot be shown 'that they were aware of the legal result that such fact entailed disqualification'. And if that be the case, then the Election Tribunal was justified in having regarded the votes cast in his favour as 'thrown away' and declare Mumtaz Hussain as having been elected."
76. In the present case, the petitioner stated in his affidavit that the respondent No,2 was a convict was too well-known and of sufficient notoriety. This statement was not denied by the respondent No,2. It is well-settled position in law that if some fact is deposed to in examination-in-chief which is not questioned in cross-examination the presumption is that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle, I accept the evidence of the petitioner. His evidence in respect of the respondent No,2 was that he was a convict was too well-known and of sufficient notoriety having not been questioned.
77. ' For reasons mentioned above, I hold that respondent No,2 stood disqualified on the day when nomination papers were filed for the reason that he was at that time had been convicted for a crime involving moral turpitude. As such I allow the election petition and in consequence respondent No,2 stands unseated and in his place, I declare the petitioner, who has secured highest votes, to have won the election to the constituency mentioned above.
78. Election .