1. ' Before commencement of inquiry relating to alleged 'misconduct' of respondent Mir Nahi Bakhsh Khan Khoso, within the purview of Article 2(a) of President's (Post Proclamation) Order-17 of 1977, an application for determining preliminary issue raised in the reply to show-cause notice was submitted on 19-11-1990. Notice was given to Advocates representing the Referring Authority.
2. Arguments were addressed at length from both sides.
3. ' Learned counsel for respondent strenuously urged that reference was incompetent, therefore, is required to be returned/dismissed on the following grounds:
(i) Provisions of P.P.O. 17 of 1977 do not apply to sitting M.NA's. Because clause (5) of the enactment, prohibits a person from being elected or chosen to Parliament or Provincial Assembly; and is silent about any disability of a sitting member. Besides, Article 63 of the Constitution, merely empowers Election Commission of Pakistan to disqualify a sitting member on a Reference made by Speaker, which cannot be superseded by any other forum or Tribunal.
(ii) Provisions of P.P.O.-17 being repugnant to Constitution are ultra vires.
(iii) Charges conveyed to respondent do not constitute 'misconduct' as defined by Article 2(a) of P.P.0.-17 of 1977.
4. On the other hand learned counsel for Referring Authority emphatically contended that:
(i) P.P.O.-17 cannot be challenged because same has been fully protected by Article 270(A) and Eighth Amendment of the Constitution. Reliance was placed on the observation in cases (i)
5. Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 and (ii) Abdul Majeed Pirzada v. Federation of Islamic Republic of Pakistan and others PLD 1990 Karachi 9.
6. Similarly vires of said enactment cannot be challenged before this Tribunal.
(ii) Article 5 of P.P.O. Read with Article 63(1)(p) of Constitution clearly relate to disqualification of even sitting M.N.As. For any 'misconduct' committed by them. Reliance was placed on Reference No,4 of 1990 Karachi, decided on 19-11-1990, by respective Special Court.
(iii) Allegations against respondent based on sufficient material and evidence, was yet to be produced during trial. Therefore demand for evaluation of evidence at this stage is premature.
7. ' I have carefully considered the arguments addressed by learned counsel for parties.
8. Firstly it may be seen that President's (Post Proclamation) Order 17 of 1977 was promulgated on 25- 11-1977. It was enacted during Martial Law, in the absence of 'Assemblies', the President had authority to legislate. However said enactment stood validated through Article 270-A of Constitution of the Islamic Republic of Pakistan. Honourable Supreme Court has confirmed this legal position in PLD 1989 SC 26 which is also followed in PLD 1990 Karachi 9. Thus, vires of P.0.-17 are not open to challenge. Additionally Special Courts have been established under Article 3 of P.O.-17.
9. Obviously it cannot assume jurisdiction to destroy or demolish the enactment under which same has been created.
10. ' Secondly Article 5 of the P.O. 17 regulates procedure for holding enquiry against members of the Parliament or Provincial Assembly responsible for `misconduct' as defined by said enactment. Law envisages that, when allegations are proved and guilt is established, respondent shall stand disqualified from being `elected' or 'chosen' as member of the Parliament or Provincial Assembly.
11. Greater thrust of arguments of learned counsel for respondent revolved around, wordings of Article '5' by urging that sitting M.NAs were expressly excluded. However to ascertain true import of law, reference to Article 4(2) is necessary.
4. Cases to be enquired into and decided by Special Court.--(1)...
(2) The Special Court shall not proceed to enquire into any charge of misconduct except on a reference in writing made to it--
(a) in the case of a person who is holding, or has held, the office of President, Prime Minister, member of the President's Council of Ministers, Federal Minister, Minister of State, Attorney-General, Federal Parliamentary Secretary, member of the National Assembly or of the Senate, Governor, Chief Minister, member of a Governor's Council of Ministers, or Provincial Minister, by the President; and
(b) in the case of a person who is holding, or has held, the office of Provincial Parliamentary Secretary, Advocate-General or a member of a Provincial Assembly other than the Chief Minister or a member of a Governor's Council of Ministers or a Provincial Minister, by the President or, if the President so requires, by the Governor.
12. Bare perusal of Article 4(2) ibid. Suggests that P.P.O. 17 is necessarily applicable to persons who are or have been members of the parliament. Thus, reference against sitting M.N.As. Etc. Is undisputedly covered by the provisions of relevant law.
13. ' Besides, visualizing the proposition from another angle, evidently duration of National and Provincial Assembly as prescribed in Articles 52 and 107 of the Constitution, is five years. However, Members of Senate enjoy term of six years under Article 59(3) of the Constitution. Whereas Article 5 of P.P.O. 17 empowers the Special Courts to disqualify the member of Parliament or Provincial Assembly for seven years. Comparison of all these provisions would show that even sitting Members who are found guilty can certainly face disability from being chosen or elected as member of Parliament or Provincial Assembly at subsequent stage therefore, absolutely no ambiguity, inconsistency or repugnancy exists in any of the provisions as being canvassed by learned counsel for respondent.
14. ' In the similar circumstances Special Courts Lahore and Karachi while determining applicability of P.P.O. 17 to the sitting M.N.As has held as under:-- ' LAHORE Reference No,4 decided on 14-11-1990: ' For purpose of interpretation of a statute not only its words are to be considered but the intent of the Legislature and necessity of making such law and its each part is to be kept in mind. If any other interpretation was given it would mean that if a person against whom proceedings under this law were pending, gets elected, proceedings would become infructuous. This cannot be the intention of the law and would be against the principles of public policy. It would follow that proceedings for the alleged misconduct of a former member can be taken and they would not abate even if he is elected for second time. Bare reading of Article 4 of P.O. 17 would show that proceedings can be initiated against a person who has been or is a member of Parliament. If that be so, by no stretch of imagination it can be held that proceedings would abate if he is elected for the second time. Act V of 1977 has been repealed."
15. ' KARACHI References 1 and 2. Decided on 19-11-1990: "Even if what the respondent says in the instant application is accepted and it is found that this Court, in a given case, can disqualify a person only from being elected or chosen as a member of Parliament or a Provincial Assembly" and cannot disqualify a person "from being" such a member (if already elected) certain incidents cannot be overlooked and that is the minimum on which these applications can be decided. Firstly the Parliament and Provincial Assemblies (Disqualification for Membership) Order 17 of 1977, expressly speaks of "the case of a person who is holding or has held the office of-- "a member of the National Assembly or a Provincial Assembly. It is, on the language, clear that a reference under such Order can be made not only in respect of persons who were members of a dissolved Assembly, but also in respect of sitting members of an Assembly."
16. I am inclined to associate myself with aforequoted conclusion and unhesitatingly hold that a sitting M.N.A. Is not immune from enquiry concerning `misconduct' allegedly committed by him.
17. Now reverting to next aspect concerning time when disqualification of respondent, facing trial under P.P.O.17 would commence. There appears to be two categories of persons. One who have been members of the Parliament or Provincial Assembly. They obviously would stand disqualified from the date when found responsible for 'misconduct' by the Special Court. The other category relates to sitting members, for whom procedure of disqualification is controlled and specified by Article 63, sub-clause (2) of the Constitution. Thus on the communication of decision made by Special Court, respective Speaker or Chairman Senate, shall make a reference to the Chief Election Commissioner, as contemplated by aforementioned Article. Eventually Chief Election Commissioner considering decision of Special Court within the purview of Article 63 (1) (p) shall make declaration of disqualification about sitting member; whereupon his seat would become vacant. Disqualification of such sitting Member therefore, would be effective for seven years from the date when Chief Election Commissioner makes formal declaration.
18. ' Lastly dealing with objection about insufficiency of evidence constituting `miscoudce, it may be observed that determination of allegations at this early stage is not warranted by law.
19. ' Evaluation of record, before allowing opportunity of leading evidence to prosecution would negate established principles of law and justice. Therefore, request in that behalf being premature is declined.
20. ' For the above reasons, preliminary objections have no substance. Application filed by respondent is disposed of accordingly.