' MUHAMMAD BASHIR JEHANGIRI, J.--Saeed Ahmed Khan petitioner filed the present petition under Article 199 of the Constitution on 23-11-1987 for a declaration that the order dated 19-11-1987 passed by respondent No,3 was "unlawful, without lawful authority and ultra vires" and that nomination papers of the petitioner filed by him on the 8th November, 1987 be declared valid and be permitted to contest the election of Councillor from Ward No,21 of Municipal Corporation, Peshawar.
2. Brief facts forming the background of this petition are that in pursuance of an announcement of the Government of N-W.F.P for holding the Elections for various tiers of the Local Councils in the Province, the nomination papers were to be filed on the 8th and 9th November, 1987. The petitioner filed before the designated officer his nomination papers for the Election of Councillor from Ward No,21 of the Municipal Corporation, Peshawar. On the day of scrutiny on 14-11-1967 Said All Shah respondent No,4 objected to the validity of the nomination papers filed on behalf of the petitioner on the ground of his conviction and sentence to ten years' R.I. By a Special Military Court, Peshawar and that, therefore, he stood disqualified under section 28 of the N.-W.F.P. Local Government Ordinance, 1979 (hereinafter called as the Ordinance). This objection, however, did not find favour with respondent No,2 who held that the petitioner was duly qualified to contest the aforesaid election and in consequence accepted his nomination papers. Respondent No,4 feeling aggrieved filed an appeal against the aforesaid order of respondent No,2 before the Additional Commissioner, Peshawar (respondent No,3) who while accepting the appeal on 19-11-1987 of respondent No,4 rejected the nomination papers of the petitioner on the ground that conviction of the petitioner by the Special Military Court invclved moral turpitude as to disqualify him from the candidature at the election. Against this order of respondent No,3 the present petition has been filed and it is prayed that the impugned order be quashed by a writ of certiorari. The ground urged is that the Additional Commissioner (respondent No,4) was not legally justified in his view that the conviction of the petitioner on 30-11-1980 under sections 120-A, 121-B and 123 P.P.C. By Special Military Court and sentence to ten years' R.I., was one for an offence involving moral turpitude. It has been urged that the petitioner was charged, tried and convicted for activities which were in fact against the imposition of Martial Law and Martial Law Regime, which could by no stretch of imagination be called immoral offence; that the petitioner after his conviction submitted an application for review to the Martial Law Administrator N.-W.F.P., who while exercising his powers under the Pakistan Army Act, 1952 read with Martial Law Orders Nos.13 and 14, on 12-9-1982 reduced the sentence of the petitioner to the period of imprisonment already undergone; that in any case by virtue of the aforesaid orders the sentence of the petitioner was reduced to less than two years'
R.I. And; that more than three years have elapsed since the date of his release.
3. The petition was contested by Said Ali Shah respondent No,4 both on legal and factual plane. It was categorically alleged that the petitioner was convicted by the Special Military Court for offences involving moral turpitude, which squarely fall within the prohibition contained in section 28 of the Ordinance. It was averred further that the acceptance of the petitioner's application on 12-9- 1982 did not absolve him of the offences he had committed but only the unexpired period of his sentence was remitted.
4. It may be pointed out at the outset that the reliefs claimed by the petitioner by way of writ of certiorari precisely were to the following effect: "A. The orders passed by the Additional Commissioner respondent No,3 dated 19-11-1987 be declared to be unlawful, without lawful authority and ultra vires and against the law and constitution and having no effect against the rights of the petitioner; ".
B. The nomination papers of the petitioner be declared as valid and he be permitted to contest the election in accordance with law OR ' Any other order may be passed which this Hon'ble Court deems fit and proper in this case."
5. On 21-11-1988 the petitioner moved an application stating therein that he was no more desirous of seeking the relief contained in para (B) ante and that petitioner was anxious that impugned order dated 19-11-1987 passed by the Additional Commissioner holding the petitioner to have been convicted for the offences involving "moral turpitude" be struck down being invalid, for, to this extent, it constitutes a legal bar against the petitioner to contest future elections.
6. The learned counsel appearing on behalf of the answering respondent (respondent No,4) raised no objection to the acceptance of writ petition in terms mentioned in the application. In view of this admitted position the learned counsel prayed for quashment of the impugned order in a summary manner. We were, however, not inclined to dispose of the petition in the manner suggested by the learned counsel for the petitioner and directed the counsel for the parties to address this Court on crucial question as to whether the learned Commissioner was correct to hold that the conviction of the petitioner under sections 120-A, 121-B and 123 P.P.C. And sentencing him to 10 years' rigorous imprisonment was one for offences involving "moral turpitude" falling within the mischief of section 28 of the Ordinance.
7. In compliance with the direction the learned counsel for the petitioner contended that in consequence of a raid conducted by the local police, the house of the petitioner was searched and Urdu version of two Russian Novels entitled ( ) and ()besides the photographs of late Mr. Zulfiqar Ali Bhutto were recovered. According to the learned counsel for the petitioner on the strength of these recoveries the petitioner was charged and convicted under sections 120-A, 121-B and 123 of the P.P.C. And finally sentenced to 10 years' R.I. The learned counsel for the petitioner further submitted that it was precisely on this score that the Martial Law Administrator N-W.F.P. Remitted his sentence and he was released on 12-9-1982. The counsel for the petitioner addressed very learned arguments on the proposition as to what constituted "moral turpitude". In this context he made reference to two authoritative pronouncements from the Indian jurisdiction reported as AIR 1963 Allahabad 527 and AIR 1966 Punjab 393, In Allahabad's case A.P. Srivastava, J. Referred to the following observations of Tandon, J in AIR 1959 All. 71: "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 weakness of character and 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 his society in general."
' After reviewing a number of authorities on what constituted 'moral turpitude' A.P. Srivastava concluded: - "From consideration of the dictionary meaning of the words 'moral' and 'turpitude' as well as the real ratio decidendi of the cases the principle which emerges 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 punishable act 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 moral turpitude appears 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 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."
8. The offence of which the respondent in the writ petition had been convicted in A.I.R. 1963 Allahabad 527 was the possession cf very small quantity viz. One tola of Bhang. In the particular District in which the Bhang was seized from the man the possession cf Bhang was an offence under section 50 of the U.P. Excise Act, while in the district to which he belonged there was no prohibition against taking Bhang. The learned Judge held that the act did not show depravity in the character of the respondent nor had the respondent done anything which was considered base or demeaning by society in general; so the conviction did not bear any moral turpitude.
9. In the second precedent cited at the Bar, a Division Bench of the High Court of Indian Punjab following the ratio in the Allahabad's case held that conviction of the respondent in that case under section 19(f) of the Indian Arms Act for being in possession of an unlicensed revolver implied no such depravity and wickedness of the character or disposition which would involve any moral turpitude.
10. The counsel for the petitioner also placed reliance on "Abdul Rashid Mughal v. Muhammad Shabbir Abbasi" (1984 SCMR 1172) wherein their Lordships of the Supreme Court examined the plea raised by the appellant in that case that his conviction under sections 332, 353 and 506 read with M.L.R.9 and M.L.0.77 and Houses of Parliament and Provincial Assembly (Election) Order (5 of 1979), Art.10(2)(aaa) did not involve moral turpitude so as to disqualify him from the candidature at the election and observed as under: "It is obvious that in the absence of any legal evidence learned 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 turpitude. 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 inadmissible 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 moral turpitude. The judgment of the High Court having been based on conjectures rather than any legal evidence is set aside and the appeal is allowed."
11. We are in respectful agreement with the ratio decidendi of the cases cited at the Bar.
The Legislature in their wisdom have refrained from specifying as to which offences do and which do not involve moral turpitude. The standards of morality differ from people to people and from era to era. An act of commission or omission may shock the morality of one society but it may not be so with another society. In our view also the tests, which should ordinarily be applied for judging, whether a certain offence did not involve moral turpitude would be as follows:- "(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."
13. The learned counsel for the answering respondent could not controvert the statement of the learned counsel for the petitioner at the Bar that the petitioner had been charged, convicted and sentenced by the Special Military Court on the charge that the Urdu version of the two Russian novels, namely ( ) and and photographs of late Prime Minister of Pakistan, Mr. Zulfiqar Ali Bhutto had been recovered in consequence of the search of the house of the petitioner. Even the learned Additional Commissioner had failed to notice that mere conviction under certain sections of the P.P. C. By the Court was by itself not enough to hold that the offences with which the petitioner was charged, convicted and sentenced involved moral turpitude. There was no legal evidence before the learned Additional Commissioner on the basis of which the petitioner could be held to have been convicted of any of those offences involving moral turpitude.
14. On this view of the matter we are clear in our mind that the petitioner was convicted by the Special Military Court on 30-11-19E0 implied no such depravity and wickedness of character or disposition which would involve moral turpitude. People should be at liberty to keep the photographs of the personalities of their liking and reverence. There should also be no bar for the people to read the literature of their choice unless it is proscribed under any law for the time being in force and even if they do they would contravene that law but it cannot necessarily be postulated that this contravention involved moral depravity and illness of the character.
15. For the foregoing reasons, we have no hesitation to quash the impugned order dated 19-11-1987 of the learned Additional Commissioner, Peshawar and declare it as without lawful authority and of no legal effect. The parties shall bear their own costs.