MANZOOR HUSSAIN SIAL, J.- Syed Masroor Ahsan, "hereinafter referred to as the first respondent" was elected unopposed on 16.6.1990 for the unexpired term of a seat in Senate from Sindh, having fallen vacant on the demise of Mr. Mohsin Siddiqui, Senator. He was notified as such on 27.6.1990 by the Election Commission of Pakistan. Mr. Tariq Chaudhry who is also Member of the Senate filed this Constitutional petition in the nature of quo warranto alleging therein that he was disqualified to hold office of a Senator and sought direction to him to show, as to under what authority he was holding or purported to hold office of a Senator, with consequential relief, Restraining the Chairman, Senate from administering the oath to him pending disposal of this petition.
2. On 13.8.1990, pre-admission notice of this petition was issued to first respondent as also for consideration of the prayer for interim relief. OnJL5.8.1990 alt order was passed by this Court to the effect that the oath of the office of the Senator shall not be administered to him till further orders.
Th first respondent assailed that order. Through a petition for special leave to appeal before the Supreme Court, wherein leave, was granted on 23.12.1990 and the impugned order restraining him from taking oath of his office was set aside, with a direction to this Court for disposal of the Writ petition by 15th January 1991. The first respondent took oath of his office as Member of the Senate in the first week of January, 1991.
3. This case was assigned for disposal to this Bench on 13.1.1991 and it was admitted to regular hearing on 20.1.1991. Syed Sharif Hussain Bukhari, Advocate for the first respondent and Ch. Muhammad Faruq, Deputy Attorney- General for respondent No. 2 and 4 accepted service on their behalf. Notice was issued to the third respondent (Chief Election Commissioner, Pakistan) for 29.1.1991.
Syed Sharif Hussain Bokhari, Advocate pointed out that the first respondent was detained by the Provincial Government of Sindh and sought short adjournment to have instructions in the matter.
On 11.2.1991, learned counsel for the first respondent stated that he could not contact him, nevertheless expressed that the written statement filed at the preliminary stage of the case be construed to be written statement filed after admission of this petition for regular hearing. The third respondent also filed para wise comments to this petition.
On 19.1.1991, one Malik Khalid Pervaiz, Advocate, filed Writ Petition No.419/91 on identical allegations and for similar relief against the first respondent which was directed to be heard along with this petition. By this order we propose to dispose of both these petitions.
4. The petitioners precisely maintain that the first respondent is disqualified to be Member of the Senate on account of his conduct being prejudicial to the security of Pakistan and a threat to maintenance of public order. He had been involved in several cases of murder, terrorism, and anti- State activities. The reports published in July, 1990 in the weekly "Facts International", weekly Takbeer", "Pakistan Observer", and weekly "Siasi Loag" high-light his character. Besides, report made on 10.10.1989 by daily Jang Karachi to the SHO Police Station Civil Lines, Karachi ransacking office of daily Jang, FIR No.29/79 lodged on 8.2.1979 at Police Station Aram Bagh, District Sough, Karachi under sections 302, 307, 435, 148/149, 120/B P.P.C, read with relevant Martial Law Regulations and F.I.R. No.369 u/ss 307, 353, 336, 148/149, 303, PPC at Police Station Mithadar, District South, Karachi containing allegations of setting on i.e oil installations at Kemari and Korangi by the accused. The first respondent allegedly provided arms to them which tends to show his involvement in criminal cases. A chart appended with this petition depicts his criminal activities. Moreover, he filled in nomination form by deliberately giving wrong information. He was convicted in one case under MLR 13 and indicted in several other criminal cases, but he had the courage to reply in the negative in the relevant columns of the form. He was thus a dishonest person and disqualified within the meaning of Article 63(l)(g)(p) read with Article 62(d)(f) and (h) of the Constitution.
5. The first respondent repudiated the allegations in the written statement and raised preliminary objection as to the jurisdiction of this Court to entertain this petition, in view of the alternate remedy available to the petitioners under the Senate (Elections) Act, 1975 read with the provision of Article 225 of the Constitution. It was also pleaded that he was representative of electorate from the Province of Sindh as he was elected member of the Senate by the Sindh Provincial Assembly, this Court has no jurisdiction to entertain this petition, morose when his election stood previously challenged through a similar writ petition pending decision in the Sindh High Court. He controverted the Contents of the press statements and the allegations in FIRs on the ground that the same were politically motivated. He denied to have incurred disqualification under Articles 62 and 63 of the Constitution.
6. On merits he asserted that the allegations embodied in FIRs and the press statements being inadmissible in evidence merited no reliance in view of the dictum laid down in Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain (1986 S.C.M.R 1736) The allegations contained in the FIR No.29/79 were of no legal significance as he was finally discharged from that case on 18.7.1990, by the Additional Sessions Judge, South Karachi. He maintained that he passed his B.Sc. Examination in 1974 and obtained Law Degree in 1987 from Islamic Law College, Karachi. He is loyal citizen of Pakistan and a good Muslim. It was pointed out that except for one case, in which he was convicted under Martial Law Regulation No. 3 for one year and ten stripes in 1977 for delivering a political speech against Martial Law, he was not convicted in any other case. He was thus not disqualified under Article 63(l)(h) of the Constituting, as the period of sentence was less than two years and more than i.e years had already elapsed. The third respondent (Chief Election Commissioner of Pakistan) opposed this petition and maintained in para 5 of the comments that the petitioner ought to have sought the relief through an election petition as provided under Section 34 of Senate (Election) Act, 1975 rather than filing this Constitutional petition in the nature of quo warranto.
7. Learned counsel for petitioners in support of these petitions argued that as the first respondent holds his office as Member of the Senate situate in Islamabad falling within the territorial jurisdiction of this Court, this Court is competent to entertain and dispose of these petitions and referred to Article 199(1) (b)(ii) of the Constitution. It was submitted that this Court was competent to require a person holding or purporting to hold a public office, within the territorial jurisdiction of this Court to show under what authority of law he claimed to hold the office. Reliance was placed on Notification, dated 27.6.1990 issued by the Election Commission at Islamabad, declaring first respondent duly elected as Member of the Senate functioning at Islamabad. In support of his sub mission he relied on Abdul Ghaffar Lakhani v. Federal Government of Pakistan (P.LJ. 1987 Karachi 331) and Messrs Al-Iblagh Limited. Lahore v. The Copyright Board. Karachi and others (1985 S.C.M.R.
758).
The learned Deputy Attorney-General also supported the learned counsel for petitioners in this behalf.
8. As regars the next contention learned counsel for petitioners maintained that the writ of quo warranto is competent because the challenge is not thrown to the election of the first respondent as Member of the Senate, but his title to hold office of a Senator is being questioned. It was submitted tha neither the provisions of Article 225 of the Constitution nor the provisions oi Article63(2) of the Constitution for resolution of election disputes create any bar for this Court to exercise jurisdiction under Article 199 (l)(b)(ii) of the Constitution. Reliance was placed on Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary Department of Agricultural. Lahore- (P.L.D. 1970 S.C:. 98). Learned counsel for petitioners also strived to distinguish the dictum laid down in Election Commission of Pakistan v. Javaid Hashmi etc. (P.L.D. 1989 S.C. 396) and Rahim Shah v. The Chief Election Commission and, another (P.L.D. 1973 S.C. 24) on the point that in those cases the contest was between- rival candidates as envisaged under the provisions of Representation of the People Act, 1976 read with Article 225 of the Constitution, but in the instant case information is being laid by a third person for the removal of the first respondent from his office. The challenge to the intermediary process of election was subject of resolution before the Supreme Court, wherein it was held that the. Election petition was the only adequate remedy in the matter. It was stated that in the instant case, however, the disqualification of the fist respondent being prior to election and continuing thereafter,, the Constitutional petition in the nature of quo warranto was the only. Remedy 'available to a rlater. Learned counsel for petitioners as well as the learned Deputy Attorney-General. Submitted that Article. 63(2) of the Constitution was also not attracted because that too related to disqualification incurred after the election when a person becomes Member of the Parliament and does not refer to pre-election disqualification.
The next contention advanced by learned counsel for the petitioner was that, the first respondent was defeated in his contest for a seat in the Sindh Provincial Assembly as such he stood also disqualified under para 10(4) of the Presidential Order 5 of 1977 (as amended by P.O.17 of 1985).
On merits learned counsel for petitioners made reference to various FTRs, a chart and press statements including an order of conviction of the first respondent- passed by the Summary Military Court in 1977 as also wrongly filling up nomination form, to show that the first respondent was disqualified to hold office of a Senator. Reference was also made to copies of some other FIRs sought to be placed on record, through a separate petition on the strength of law laid down in Islamic Republic of Pakistan v. Abdul Wali Khan. MNA (P.L.D. 1976 S.C. 57).
9. Learned counsel appearing on behalf of the first, respondent on the other had, contended that this writ petition is not maintainable firstly because no election to house was challengable except by an election petition presented to a Tribunal as provided under Article 225 of the Constitution.
The case title Election Commission of Pakistan ,v. Javaid Hashmi (P.L.D. 1989 S.C. 396) was cited to argue that the writ petition in the nature of quo warranto was not maintainable in view of the c(ear bar recognised in the aforesaid pronouncement of the Supreme Court. It was submitted that the provisions of Article 199 were controlled by the provisions of Articled 225 and 63(2) of the constitution as the former were made subject to the other provisions of. The Constitution. The legislature clearly intended to prescribe forum for resolution of all the election disputes as contemplated under Article 225 of the Constitution.
It was also submitted that the first respondent having been, elected to represent a seat of Senate from the Province of Sindh and pendency of a writ petition on identical nature in the Sindh High Court at Karachi .Barred the jurisdiction of this Court to entertain this petition.
It was lastly contended that in any case it was not a fit case to exercise discretion to interfere in the election of the first respondent on the mere allegations levelled in the press statements and F.I.Rs.
Referred to above. Reliance was placed on Raia Muhammad Afzal v. Ch. Muhammad Altaf Hussain (1986 S.C.M.R. 1736) in support of his submission.
10. We have heard learned counsel for the contesting parties, at some length and the learned Deputy Attorney-General and have also examined the documents on the record. The first question of paramount importance for determination is, as to whether this Court has the jurisdiction to decide these petitions under Article 199(l)(h)(ii) of the Constitution of the Islamic Republic of Pakistan. It is abundantly t^par that pursuant to Notification issued on 27.6.1990 at Islamabad the first respondent was elected as Member of the Senate and hold's that office situate at Islamabad within the territorial jurisdiction of this Court. He is thus a person holding the public office situate within the territorial jurisdiction of this Court. This Court, therefore, has jurisdiction to entertain and adjudicate upon the matter.
11. The mere pendency of a writ petition on identical questions filed by Shamash-ul-Arfin MNA against the first respondent, in the Sindh High Court for similar relief, in our view, does not divest jurisdiction of this Court to decide these petitions. In Abdul Ghaffar Lakhani v. Federal Government of Pakistan through Secretary. Cabinet Division. Government of Pakistan Islamabad and two others (PLJ 1987 Karachi 331 (F.B.), it was held that the writ in the nature of quo warranto is restricted to a person holding public office within the territorial jurisdiction of the High Court. Declaration was sought in that case that General Muhammad Zia-ul-Haq; Chief of the Army Staff after assumption of the office of the elected President of Pakistan could not act as Chief of the. Army Staff. The unanimous verdict of the Court was that the Chief of the Army Staff did not hold office in the Province of Sindh, the Sindh High Court therefore, had no territorial jurisdiction to issue writ in the nature of quo warranto against him.
12. Similarly in Messrs Al-Iblagh Limited. Lahore, v. The Copyright Board. Karachi and others (1985 SGMR 758) and Asghar Hussain v. The Election Commission Pakistan etc. (P.L.D! 1968 S.C. 387), the principle enunciated by the Supreme Court does not exclude the jurisdiction of this Court to entertain this . Petition against the first respondent who holds his public office and performs his functions in connection with the affairs of the .Senate situate within the territorial jurisdiction of this Court In our view, the factum of his election to a seat in the Senate of pakistan from the Province of Sindh does not digest jurisdiction of this Court otherwise duly vested in it under Article 199(l)(b)(ii) of the Constitution of the Islamic Republic of Pakistan to decide these matters.
The next question of vital significance calling for adjudication is, whether these petitions under Article 199(l)(b)(ii) of the Constitution in the nature of quo warranto are. Maintainable against the first respondent owing to the provisions of Article 225 read with Article 63(2) of the Constitution. We may with advantage reproduce the relevant provisions of the Constitution hereunder:-- "199. JURISDICTION OF HIGH COURT.
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (a)....................................................................................
(b) on the application of any person, make an order-
(i) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
The opening clause of Article 199 of the constitution provides "subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law" indicates that the provisions contained in this Article are controlled by other provisions of the Constitution.
"225. ELECTION DISPUTE.-No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)."
63. DISQUALIFICATION FOR MEMBERSWHIP OF MAJLIS-E- SHOORA PARLIAMENT!.
(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament)
(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has, become disqualified, he shall cease to be a member and his seat shall become vacant.
13. The afore-mentioned provisions of the Constitution prescribe mode for resolution of the election disputes. Article 225 of the Constitution provides negative imperative to challenge the election dispute by election petition presented to a tribunal whereas Article 63(2) provides that if question arises whether a member of the Parliament incurred disqualification, the Speaker of the National Assembly or the Chairman of the Senate as the case may be, shall refer the matter to the Chief Election Commissioner for decision. One of the main allegations against the first respondent is that he filled in the nomination form and concealed having been indicted and convicted in criminal cases thereby earned disqualification to be member of the Senate, for his mis-conduct in the process of election. The filling up nomination papers for filing thereof is a step in the process of election, and only assailable by means of election petition as envisaged under Article 225 of the Constitution read with sections 31 and 34 of the Senate (Election) Act, 1975 Whereas Rule 39 of the Senate (Election) Rules, 1975 envisages filing of the election petition by a candidate to the election or his representative duly authorised by him. The challenge to election of a successful candidate therefore, can only be made through an election petition by a rival candidate. All steps i-.The conduct of election including the filing of the nomination papers thus are challengable by means of election petition.
14. In Amirzada Khan MNA v. The Chief Election Commissioner and 2 others (P.L.D. 1974 Lahore 178), it was held that election is a process which starts with the issuance of the election programme and consists of various links and stages in that behalf like filing of nomination papers, their scrutiny, the hearing of objections and the holding of the actual polls etc. Similarly in Muhammad Afzal v. Miraj Din (P.L.D. 1967 Lah. 689), it was observed:-- "Election is a continuous process consisting of a series of acts required to be done in different stages in accordance with the schedule contained in the notification to be published in the official Gazette fixing dates for filing of nomination papers scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result etc."
15. In Niaz Ahmad Khan v. Province of Sindh and others (P.L.D. 1977 Kar. 604), an advocate of the High Court challenged imposition of Martial Law in some part of Province of Sindh. It was argued that the National Assembly which was elected in 1977-General Election was a product of wholesale rigging, therefore, the members of the Parliament were disqualified from holding the public offices as such the Prime Minister elected by them could not hold that post and decision taken by the Government's Head was un-constitutional. In that case rule laid down in Farzand Ali's case was distinguished on the ground that the provisions of Article 171 of 1962 Constitution were materially different from the provisions of Article 225 of the Constitution as the latter barred challenge to the election of a member of the Parliament other than through an election petition. It was observed that since the objection of the writ petitioner against the election of the member of the parliament related to actual conduct of election i.e. Rigging which could only be challenged through election petition and not otherwise.
16. The Supreme Court in Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (P.L.D. 1989 SC 396), held that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in appropriate manner before the Election Tribunal and should not be brought up at an intermediary stage before any Court, otherwise Article 225 of the Constitution would be deprived of its meaning and content, the Supreme Court in that case further held that Article 225 of the Constitution did not contemplate two attacks on the matter while election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy and the other when the election has reached the stage of completion by means of election petition. It is thus clear that all steps in conduct of election could be challenged only by way of election .Petition by a rival candidate. The blanket cover is therefore, provided to all litigative challenges in respect of every kind of order passed in the course of election process because the provisions of Article 199 are subject to Constitution including Article 225 and exercise of power under Article 199 thus cannot be placed on higher footing than that contained under Article 225 of the Constitution. It was observed:-- "Here I may point out that the exercise of power under article 199 - cannot be placed .On any higher footing than that emanating from Article 225 of the Constitution, and that while the power under Article 199 exercisable by the High Court is "subject;to the Constitution" whereas there is no such limitation in Article 225.. This Article by. Its language "creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespective of anything contained in any other Article. More particularly so as it is an essential part of parliamentary jurisdiction which under the Jaw entrusts election ^disputes for decision to the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and fact".
Obviously, therefore, allegations regarding filing of nomination form containing false information, would be a step in the conduct of election and could only be assailed through election petition, a statutory remedy provided, under the law with mandate under Article 225 of the Constitution. It is, therefore, clear that the rule laid down by the Supermen Court in the above referred case that Article 225 .By its mandate creates an independent jurisdiction for resolution. Of the election disputes and all question of law and facts are to bp decided by the Election Tribunal after the election process is completed, the jurisdiction under Article 199 of "the Constitution was not available specially because it was subject to the provisions of the Constitution including Article 225.
In this view of the matter these petitions are not maintainable.
17. Article 63(2), however, provides another mode to .Oust a member of the Parliament if he incurred disqualification to his election as member. The Speaker of the National Assembly or the Chairman of the Senate as the case .May be, may make a reference to the Election Commission for decision of- the question as to whether a "member who had suffered disqualification ceased to hold his office or not. This articles thus inapplicable to the facts of the instant case. In Javid Hashmi's case the very contest was between two rival candidates. In the instant case, however, the contest is not between the rival candidates as the first respondent was elected unopposed. The question arises as to whether if the disqualification of the first respondent is preceding the election and continues even after the election, can a relater invoke .The jurisdiction of this Court under Article 199 when he cannot competently i.e election petition as he is not a rival candidate nor can invoke the provisions of Article 63(2) of the Constitution as disqualification incurred by the first respondent was pre-election and not after he became member of the Senate.
The following observations of the Supreme Court, with reference to Ltd. Farzand Ali's case made in Election Commission of Pakistan v. Javaid Hashmi (P.L.D. 1989 SC 396) may be instructive:- "In that case a broad Argument was raised that if once the name of the person has bee registered on the electoral roll, his nomination papers having been accepted and he being allowed to contest the election successfully, his election could not be challenged in any other manner save under the specific law providing for challenging election, notwithstanding the fact that no provision has been made in the' Constitution or any other law for prescribing a special procedure to meet a pre- election disqualification of the successful candidates. Hamoodur Rahman, C.J. Did not accept the' argument as presented mainly on two grounds firstly, that, if it was to prevail then it would hit Article 103 of the Constitution as then such a person could continue to remain a Member of thc.
Assembly even though Article 103 did not permit it, and secondly, because the dispute raised after an election is not a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a member of an Assembly, in effect, therefore,, the dispute did not relate to the validity but title to the office in which case writ of quo warranto could issue. Again in that contest it was also observed that the remedy would still be available in all cass where the matter is, as in the case under Consideration, outside the. Scopc of statutory remedy.
These observations are (distinguishable as rightly held by the learned Chief Justice in the context of the fact that they did not arise in relation to an election or were outside the scope of the statutory remedies. This being so, the rule state earlier that the action has to be tested, on the touchstone of the word "election" is not affected in ^ew of the constitutional bar-providing for the enforcement of the right through remedies available under the Act comprehended therein."
18. It means that if the dispute is about the conduct, or validity of election, it could only be challenged through election petition, a statutory remedy provided under the law, but if it. Touches the title to the office and had not arisen in relation to election writ of quo warranto could" issue.
Hon'ble Mr. Justice Nasim Hassan Shah, although holding minority view expressed that orders passed and proceedings taken, even by election authorities, which are outside the limits of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution.
Relying on Ghulam Mustafa Khar;s case (P.L.D. 1989 SC 26), it was observed:- While I agree that it is not desirable that the election process should not be interrupted during the intermediate stage, I cannot agree that . To avoid the complication of any such interference a blanket ban should be read into Article 225 to every litigative challenge made to every kind of illegal order passed by an election authority. The law laid down in this respect by Courts in Pakistan and reiterated in the recent judgment of the Full Court in (PLD 1989 SC 26) is otherwise. Herein it was observed that "this Article 270-A does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law." Accordingly, I would, therefore, hold that orders passed even by election authorities which are outside the limit of the law, ae not immune from challenge and correction by the High Court under Article 199. Undoubtedly in doing so the High Court will exercise its jurisdiction with extreme circumspection, in full consciousness of the normal rule that it should not interfere with the process of the Election at an intermediate stage, but leave it to the Tribunal to correct all errors committed after the election is over."
19. Even examining from this angle, the material brought on the record, by the petitioners in our view, is not of such an evidentiary value, so as to legally justify removal of an elected member of the Senate from his public office, in exercise of discretion in Constitutional jurisdiction of this Court.
The documents referred against the first respondent consist upon, copies of First Information Reports, a chart containing summary of allegations, statements appearing in the press soon after he was elected as Member of the Senate, about his character and involvement in criminal cases, including his conviction under Martial Law Regulation NO.13 entailing penalty of one year with ten stripes for making speech against Martial Law Authorities. Taking up his conviction first, it may be observed that he was neither disqualified under Article 63(l)(h) of the Constitution nor under Section 78 of the Senate (Election) Act, 1975.
20. Article 63(l)(h) of the Constitution provides that a person shall be disqualified from being elected or chosen as, or from being a member of the Majlis-e-Shoora (Parliament) if he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to Imprisonment for a term of not less than two years, unless a period of i.e years had elapsed since his release.
On identical terms Section 78 of the Senate (Election) Act, 1975, provides:- "78. Disqualification-- A person shall be disqualified from being elected as, and from being, a member of the Senate, if
(a) he has been, on conviction for any offence, sentenced to imprisonment for a term of not less than two years, unless a period of i.e years has elapsed since his release."
21. It may be seen, that the first respondent was convicted in 1977 and sentenced for less than two years. Undoubtedly period of more than i.e years had already elapsed. He was, therefore, no more disqualified to be member of the Senate on account of his previous conviction under Martial Law Regulation No. 3. As regards the rest of the material alluded above and pressed into service for his disqualification, the Supreme Court in Raja Muhammad Afzal's case held that Police reports cannot be relied as evidence of the correctness of facts mentioned therein. The correctness of the contents of FIRs, press statements cannot be established unless formally proved in evidence. They simply indicate that such cases were registered. The presumption of innocence of the accused facing trial continues untill held guilty. The law of election requires strict proof of disqualification through positive evidence.
22. The chart relied upon by the petitioners containing summary of individual instances, is neither signed nor certified by any responsible officer about the correctness of its contents, carries little evidentiary value to disqualify an elected member of the Senate. We may observed that penal Statute tending to deprive valuable right of franchise, must be strictly construed and in case of doubt the benefit must go to the person against whom such finding is sought. In Haji Muhammad Tariq v. Muhammad Naveed-uz-Zafar (PLD 1984 Lahore 502 (D.B.), this Court set aside the order of the election Tribunal disqualifying a returned candidate on conviction by Martial Law Authorities, assuming him to be terrorist and involved in subversive activities, for want of positive evidence of unquestionable reliability.
23. Similarly in Sardar Asseff Ahmed Ali v. Mr. Muhammad Khan Junejo and others (P.L.D. 1986 Lahore 310 (332), relying on Kamal Hussain v. Siragul Islam) PLD 1969 SC 42, it was held that, writ of quo warranto cannot issue as a matter of course on sheer technicalities on a doctrinaire approach. The Court is vested with the discretion not to issue writ if it is not satisfied about the bona-fides of the relator, or the evidence on the record does not justifiably warrant so, particularly in election disputes which inevitably lead to investigation of facts more appropriate for the tribunal rather than for a Court exercising the prerogative of issuing writ.
In Pir Allay Immrawn and another v. Mian Muhammad Nawaz Sharif and another (1991 CLC 1), wherein a tribunal consisting upon three Judges of this Court held that:- "Suffice it to say that these allegations are hearsay and, therefore, the same cannot be admitted in evidence for disqualifying the respondent from contesting the election, in view of well-established exclusionary rule of evidence. Wharton's Criminal Law 9th Edition mentions the following principle:- "The only safe course, therefore, is to find the verdict exclusive on evidence duly received and on inference logically to be drawn from such evidence."
Wigmore commenting on Theory of Hearsay Rule, quotes with approval the following remarks of Kent, C.J. In Coleman v. South wick, 9 John 50:- "A person who relates a hearsay is not obliged to enter into any particulars to answer any questions, to solve any difficulties, to reconsile any contradiction to explain any obscurities, to remove any ambiguities, he entrenches himself in the simple assertion that he was told so, and ecalcavate burden entirey on his dead or absent author."
The Supreme Court in Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain 1986 SCMR 1736 quotes with approval the aforesaid remarks and held: "the exclusionary rule of evidence may appear to be too formal and somewhat strict and influxible, but it has its roots deep down in law."
Respectfully following the principle laid down by the Supreme Court in Muhammad Afzal's case supra), there is no scope . For reliance on the newspaper reports and, therefore, the respondent does not stand disqualified on that score."
It was observed that is is well settled that the allegations, howsoever, grave, allegations and cannot take the place of prooav 'or be admitted in evidence to reflect the correctness of the facts alleged therein unless they are proved in accordance with law. The disqualifications envisaged by Article 62 and 63 were held not attracted merely upon the allegations in the absence of any proof on the record.
The Supreme; Court in Abdul Rashid Mughal v. Muhammad Shabhir Abbasi (1984 SCMR 1172) set aside the judgment of the Lahore High Court in issuing writ iq the nature of quo warranto,- whereby the High Court declared the respondent in that case disqualified as member of Municipal Committee, Murree, on his conviction by Summary Military Court, and observed:-- "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 FIR 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, FIR and certificate from Deputy Superintendent, District Jail Rawalpindi, were inadmissible in evidence and, by themselves, furnished no proof upon which a conclusion could be drawn, much less a judgment rendered, that appellant was hed guilty and convicted for an offence involving moral turpitude. The judgment of the High Court having been bases on conjectures rather than any legal evidence is set aside and.
The appeal is allowed"
24. When confronted with this situation learned counsel for the petitioners stated that this Court may record evidence in support of the averments contained in the F.I.Rs as well as the press statements referred to above. We find no merit in this submission, either as highlighted above, it is the exclusive-function, of the Tribunal to investigate and record evidence rather than a Court exercising Constitutional jurisdiction in election dispute.
25. The last contrition of the learned counsel for the petitioners that the first respondent was disqualified as member of the Senate under Article 10(4) of Presidential Order No.5 of 1977 (as amended by President's Order No.17 of 1985), as he contested the election for membership of Provincial Assembly of Sind and defeated, has also no force because the disqualification was relatable only to the elections held under that Order. The election to the seat in question was held under Senate (Election) Act, 1975 read with representation of the People Act, 1976 as such the disqualification contained in Presidential Order No.5 of 1977 was not attracted.
In the result, we are of the considered view that these writ petitions are devoid of force and are accordingly dismissed with no order as to costs.
This also disposes of C.M.N.731/91 and C.M. No. 820/91.