' JUSTICE (RETD.) NAIMUDDIN, C.E.C.---This is a Reference under section 8-B of the Political Parties Act, 1962 (hereinafter called the Act) filed by Sahibzada Pir Sabir Shah, the leader of Parliamentary Party of Pakistan Muslim League (Nawaz Group) against Shad Muhammad Khan. The facts, the grounds of the Reference and the most of the evidence is set out by my learned brother Mr. Justice Muhammad Bashir Jehangiri in his judgment. I need not repeat the same here. However, I shall refer to those pieces of evidence, which have not been considered or if considered, with utmost respect, not in right perspective.
2. A similar Reference by the same petitioner has been filed against Akhtar Hussain Shah, the respondent, on the same facts and grounds except para. 7, which is different in the two References.
Therefore, I would reproduce the two paras. 7 from both the References. In the Reference against Shad Muhammad Khan, para. 7 reads as follows:--- "7. That the respondent was being kept hidden by the opposition so that the petitioner or other members of his party should not be able to make any contact with him. It is very significant to note that the respondent did not even attend the meeting of the House convened to table the motion of "No Confidence" against the petitioner held on 16-2-1994. This single fact is sufficient to establish that despite being Deputy Speaker of the House he was avoiding to meet his Parliamentary Members so that he be not called upon to explain his position for having defected his party and for supporting the "No Confidence" motion against the petitioner. Anyhow, another meeting of the Parliamentary Party of PML(N) was held on 17-2-1994 to discuss, inter alia the defection of the respondent and with the object to give him further opportunity. It was decided that he should be contacted to enable hill' to ensure that he was still loyal and subject to the decision of the party and its discipline. The respondent could not be contacted as he was neither available at his office nor at any other ordinary place of his residence and as stated above was hiding along with the other opposition members who according to Press reports and other information available to the petitioner were staying outside the province. Throughout the period the press had been widely and loudly reporting that the respondent had joined the opposition camp and was going to support the "No-Confidence" motion against the petitioner. On 21-2-1994 a Press conference was held by Mr. Aftab Ahmed Khan Sherpao (the leader of the Opposition) to demonstrate the strength of the Opposition on the No-Confidence motion. In this Press conference, all the members showing support for the No-Confidence motion were also present. Respondent, was present conspicuously in the Press conference sitting by the side of Mr. Aftab Ahmed Khan Sherpao. Pakistan Television on national network in the "KHABARNAMA" televised the film, showing the presence of the respondent.
This fact had also been widely covered by the National Press. Compelled by the aforesaid circumstances Parliamentary Party PML(N) in its meeting held on 22-2-1994 decided to disqualify the respondent under the provisions of section 8-B of the Political Parties Act, 1962 as Amended by Ordinance XXX of 1993. The decision of the Parliamentary Party was also duly conveyed to the Speaker on 23-2-1994. That on 23-2-1994 i,e,, the date fixed for the voting on the aforesaid "No- Confidence" motion the Opposition brought all its members and supporters in a chartered plane which reached Peshawar in the morning of 23-2-1994. The respondent also came to Peshawar by the same plane and along with other Opposition members led by Mr. Aftab Ahmed Khan Sherpao from the Peshawar Air Port to N.-W.F.P. Assembly premises and entered the House along with them."
' While in the reference against Akhtar Hussain Shah, para. 7 reads as follow:--- "It is very significant to note that the respondent did not attend the meeting of the House convened to table the motion of "No-Confidence" against the petitioner held on 16-2-1994, despite being a member of the petitioner's Cabinet. This single fact is sufficient to establish that despite being the member of the petitioner's Cabinet and duty-bound to act in aid of the petitioner, he purposely absented himself. Anyhow, another meeting of the Parliamentary Party of PML(N) was held on 17-2- 1994 to discuss, inter alia the defection of the respondent and with the object to give him opportunity to explain his position. It was decided that he should be contacted to enable him to ensure that he was still loyal and subject to the decision of the Party and its discipline. The respondent could not be contacted as he was neither available at his office nor any other ordinary place of his residence. It may be pertinent to mention here that the respondent with the object to support the No-Confidence motion, resigned from the post of the Minister on 20th February, 1994."
3. The reply of Shad Muhammad Khan to para. 7 is as follows:--- "7. It is incorrect to suggest that respondent was kept hidden by the opposition. The allegation is vehemently denied. The decision to attend or not attend a meeting of the House by an MPA is within the discretion of that member and drawing of any inference to suit the case of the Petitioner, can only be his own brainchild. The petitioner refers to the meeting of the Parliamentary Party PML(N) of 17th February, 1994 which, it is denied was ever held and in any event, no notice or information was ever received by the respondent. It is submitted that on 21st February, 1994 there was an Iftar Party partook by Members of Provincial Assembly, N.-W.F.P. And' was purely of social nature. Any inference to the contrary as alleged by the petitioner is denied. The alleged meeting of the Parliamentary Party PML(N) purportedly held on 22nd February, 1994, did not take place, and in any event no notice of any kind was ever received by the respondent. The allegation of travel from Islamabad to Peshawar in a chartered plane and further allegation connected thereto, being surmises and conjecture based on malice is denied."
' The reply of Akhtar Hussain Shah to para. 7 of the reference is as follows:- "7. Save for the fact that respondent continued as member of the petitioner's Cabinet until 3 days prior to the session of N.-W.F.P. Assembly and resigned on 20th February, 1994, the contents of para.7 are denied. In fact the respondent, until his resignation, not only remained accessible but also participated in public and official meetings of PML(N) in particular with Mian Nawaz Sharif, the leader of his own faction of PML, on 9th February, 1992 (1994) in Mansehra District."
4. It may be seen here that Shad Muhammad Khan denied the allegation of travelling from Islamabad to Peshawar in the following words:-- The allegation of travel from Islamabad to Peshawar in a chartered plane and further allegation connected thereto, being surmises and conjectures based on malice are denied."
5. It is the case of the petitioner against the two respondents in two separate references, namely, Shad Muhammad Khan and Akhtar Hussain Shah that they have defected and had acted against the interest of their party violated the party discipline, betrayed not only the party on whose ticket they were elected but also betrayed the confidence of electors who had voted in their favour on account of being candidate of Pakistan Muslim League (Nawaz Group). The petitioner has given 10 instances, which according to him constitute defection of the respondents from Pakistan Muslim League (Nawaz Group). The respondents besides legal pleas, denied the allegations. They stated in their separate written statements that it was incorrect that they were not available or inaccessible.
6. Before taking up the issues, I may first deal with some of the instances from the reference of Shad Muhammad Khan, of the conduct of the respondent, which according to the petitioner is evidence of or constitute defection.
(i) In para. 11(a), the petitioner has stated in his reference under section 8-B of the Political Parties Act, 1962 as follows:- "a. That on 21-2-1994 a video film was televised on PTV during the "KHABARNAMA" which was a coverage of a Press Conference held by Mr. Aftab Ahmed Khan Sherpao to show to the Press and public that he had the requisite majority to win the "No-Confidence" motion against the petitioner.
The respondent was shown sitting next to Mr. Sherpao during the Press conference."
' The reply to this para is as follows:-- "The allegations contained in para 'a' are denied in the light of reply given above to similar allegations."
' In the reply given above it is stated that "It is submitted that on 21st February, 1994 there was an Iftar party partook by members of the Provincial Assembly, N.-W.F.P. And was purely of social nature."
7. It will be seen that in the reply the respondent has not specifically denied the allegations made in para. 11(a). The reply is evasive and it cannot be considered a proper reply.
8. (ii) The other instance given in sub-para (b) of the reference is as follows:- "(b) The National Press carried this news alongwith the photographs including the respondent who was present in the said Press Conference held by Mr. Aftab Ahmed Khan Sherpao. Till this day the respondent has issued no statement contradicting the above facts."
' In reply to this sub-para, the respondent has stated that:-- "The contents of para. 11(b) needs no comments as the issue is already been dealt with above."
9. This reply is again evasive. The respondent Shad Muhammad Khan did not deny that he ever issued any statement contradicting the holding of press conference by Mr. Aftab Ahmed Khan Sherpao or that the National Press carried the news mentioned above with the photograph showing the presence of the respondent at a meeting or conference.
(iii) The third instance is:-- "(c) That since 5th February, 1994 the respondent had failed to attend any meeting of the Parliamentary Party, he had shown his disloyalty to his Party by joining the opposition on a very crucial issue."
' Reply to his sub-para is as follows:-- "(c) The allegation contained in para 'c' is incorrect and in fact a lie, thus denied."
10. This is again a evasive reply. He has not stated, if he at all attended any meeting of the Parliamentary Party, if so, when.
(iv) The next instance is contained in sub-para (d), which reads as follow:- "(d) That the formation of Government is in essence the most significant object and purpose of a political party. Such political party can remain in the Government if it enjoys the confidence of the majority of the members of the House. Obviously to stay in the Government, the support besides others, of the members of the House who have been elected on the ticket of the political party as its nominee is fundamental and most essential. If any member by his action or inaction betrays his political party which could result in the defeat ,of the Government there cannot be any other glaring example of defection. Exactly this is what has been done by the respondent. It is not merely because of his inaction that he intends to cause harm to his party but is actively joining with the Opposition with an object to topple the Government of PML(N) (his -own party) and its supporters in N.-W.F.P."
' The reply is that:- "(d) The allegations contained in para. 'd' are not worthy of attracting any comments as being non-sensual, thus denied."
11. I need not deal with other instance for the sake of brevity.
12. After hearing the parties, the following issues were framed:--
(1) Whether section 8B of the Political Parties Act, 1962 is ultra vires the Constitution and repugnant to the Injunctions of Islam?
(2) Whether the reference is incompetent, misconceived, mala fide and not maintainable?
(3) What is the effect of the withdrawal of the decision by the Parliamentary Party?
(4) What is the effect of the withdrawal of the ruling of the Speaker?
(5) Whether the respondent has defected from Pakistan Muslim League (Nawaz Sharif Group), if so, what is its effect?
(6) Whether the respondent has become disqualified from being a Member of the Provincial Assembly of N.-W.F.P., if so, from what date?
(7) Whether the Election Commission of Pakistan has jurisdiction to determine the vices of section 8B of the Political Parties Act, 1962?
(8) Relief?
13. I would now take up the issues Nos.1 and 7 together.
ISSUES NOS.1 AND 7.
' Taking up the first above issues whether section 8-B of the Political Parties Act, 1962 is ultra vices the Constitution and repugnant to the Injunctions of Islam and whether Election Commission has jurisdiction to determine the vices of section 8-B of the Political Parties Act, 1962. It may be stated that the burden of these issues was on the respondents who raised them in their written statements. Syed Sharifuddin Pirzada while dealing these issues submitted that he maintained that section 8-B of the Political Parties Act, 1962 was ultra vires the Constitution and repugnant to the Injunctions of Islam.
14. In my opinion a Tribunal of limited jurisdiction, as the Election Commission is, while dealing with a reference under section 8-B of the Political Parties Act, 1962, cannot conclusively decide this question. It is for the Court of general jurisdiction to conclusively decide it. However, I am of the view that section 8-B is not ultra vires the Constitution and is not hit by any of the fundamental rights, particularly, against freedom of association (Article 17), freedom of speech (Article 19) and equality of citizens (Article 25) of the Constitution. So far freedom of association is concerned, the right to form association or unions is subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. Similarly Article 19 of the Constitution also guarantees to every citizen the freedom of speech and expression but it is also subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court commission of or incitement to an offence.
15. Under these Articles freedom of association and freedom of speech are subject to the condition mentioned therein. Section 8-B of the Political Parties Act in my opinion is not hit by equality of all citizens before law clause (Article 25). Further, in view of the provision of Articles 62 and 63 of the Constitution it is not open to argue that section 8-B of the Political Parties Act, 1962 is ultra vires the Constitution. But the issue of vires is to be decided finally by the Superior Court.
16. Here reference to the case of Humayun Saifullah v. Federation of Pakistan and others PLD 1990 SC 599 is pertinent. In this case Humayun Saifullah leader of the Parliamentary Party filed a Reference under section 8-B of the Political Parties Act, 1962 against respondent No,2 Muhammad Ayub Khan Tanooli, respondent No,1 being the Federation of Pakistan before the Election Commission of Pakistan on the ground of his defection.
17. On the pleadings of the parties, in that case the following issues were framed:-
(1) Whether Mr. Humayun Saifullah Khan was the leader of the Parliamentary Party of the I.J.I. In the Provincial Assembly of N.-W.F.P. At the relevant time?
(2) Is the I.J.I. a political party within the meaning of section 2(c) of the Political Parties Act?
(3) Have the respondents withdrawn/defected from I.J.I. And have thereby attracted the disqualification within the meaning of section 8-B of the Act?
(4) Is section 8-B of the Act ultra vires the Constitution?
(5) Is section 8-B violative of the basic structure of the Constitution?
(6) Is the reference mala tide as alleged in paragraph F of the Preliminary Objections?
(7) Whether the petitioner not having filed any reference against Sahibzada Yaqub Ali Khan is estopped from filing the present reference?
(8) Relief?
18. During the pendency of Reference, respondent filed a Constitutional petition in the Peshawar High Court, claiming the following relief:- "(a) Section 8-B of the Political Parties Act, 1962 is invalid being ultra vires the Constitution and also falls short of reasonable legislative measure being inconsistent with fundamental rights and void in terms of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973.
(b) The reference (Annexure 'A') made by respondent No,3 and all proceedings by respondent No,2, in consequence thereof, are incompetent and without jurisdiction.
' Any other relief appropriate in the circumstances but not specifically asked for may also be granted to the petitioner, with costs."
' The High Court allowed the petition and in the concluded paragraph observed as follows:--- "For the aforesaid reasons and without determining the question of the vires of section 8-B of the Political Parties Act, 1962, this writ petition is accepted to the extent that the reference under section 8-B of the Political Parties Act, filed by Humayun Saifullah Khan (respondent No,3) before the Election Commission of Pakistan (respondent No,2) is declared to be invalid and incompetent in law. The respondent No,3 is also restrained from proceeding with the reference in question before respondent No,2. No order as to costs."
19. On a petition being preferred to the Supreme Court of Pakistan, leave was granted to consider the following grounds:--- "Whether the High Court could issue the writ of prohibition to the Election Commission when specially a provision of appeal is provided to the Supreme Court?
' Whether the High Court could declare the reference made before the Election Commission as incompetent, without there being evidence of fact that the petitioner was not a leader of the Parliamentary Party? And ' Whether the High Court could restrain the Election Commission from deciding a reference, duly referred to it within the meaning of section 8-B of the Political Parties Act, 1962?
' The writ was recalled with the following observations:--- "Keeping in view the importance of the issues raised in the Constitution petition and the absence of any discussion or fmding of the High Court on these issues, we would while setting aside the judgment of the High Court remand the matter to High Court for disposing of the Constitution petition in accordance with the law. In the meantime, and while this Constitution: Petition is awaiting decision on merits in the High Court, there shall be no restraint on the Election Commission, in the matter of adjudicating the controversy pending before it. No order as to costs."
' Therefore, Supreme Court left the question of law or jurisdiction for decision to Peshawar High Court and the case on merits be decided by the Election Commission.
' Accordingly, the issues of vires and jurisdiction will be finally decided by the Superior Courts.
20. As regards the submission of Syed Sharifuddin Pirzada that section 8-B of the Political Parties Act is repugnant to Injunctions of Islam it would suffice to say that it is beyond the competence of this Commission to deal with or decide it. The jurisdiction and power to decide the question vest in the Federal Shariat Court under Article 203-D or the Supreme Court under Article 203-F of the Constitution.
' Therefore, the abovementioned two issues are decided as mentioned hereinbefore.
21. Issue No,2, The burden of proving this issue was on the respondents. But they did not argue at all, how the Reference under section 8-B of the Political Parties Act, 1962 was incompetent or misconceived or mala fide or not maintainable. The Reference filed is by Syed Pir Sabir Shah, who is the leader of the Parliamentary Party and whose status as such is not in dispute. Even otherwise, there is ample and uncontroverted evidence to that effect. The Commission is also competent to hear the Reference in view of repeal by lapse of Ordinance called the Political Parties Ordinance, 1993 promulgated on F 7-10-1993 which lapsed by efflux of time on 6-2-1994. This Reference was filed on 30th March, 1994 after the amendment had lapsed. No particulars of any mala fide are given in the written statement. I, therefore, hold that the Reference is competent and maintainable and is not mala fide or misconceived.
22. Issue No,3.
Taking up the Issue No,3, I may state that there is no effect whatever of the withdrawal of the decision by the Parliamentary Party, so far as the Reference under section 8-B of the Political Parties Act, 1962 which was filed on 30th March, 1994 with the Election Commission is concerned. It has been filed pursuant to an agreement arrived at between the parties which is countersigned by the Hon'ble Chief Justice and 4 Horeble Judges of the Peshawar High Court, para. 2 whereof reads as follows:--- "2. Consequently we shall dispose of the writ petitions that the decision-ruling of the respondents about the disqualification of the writ petitioners have been withdrawn and the membership of the writ petitioners stands restored. The matter/references filed before the Election Commission/Chief Election Commissioner or further formal or proper references if any made immediately about the disqualification of the writ petitioners before the Elation Commission/Chief Election Commissioner shall be attended to by the parties on the basis of day to day hearing and due to the urgency of the subject-matter we would request the Honourable Chief Election Commissioner for the expeditious disposal of the references/ matters by day to day hearing. Parties are left to bear their own costs."
' Further, the decision of the Parliamentary Party could have some concern with decision of the Speaker. But it in my opinion has no effect on the present reference under section 8-B of the Act.
23. Issue No,4, ' The withdrawal of the ruling of the Speaker of the N.-W.F.P. Assembly is also of no effect for the same reasons as given in respect of Issue No,3.
24. I would take up Issues Nos. 5 and 6 together, which are most important issues.
Issues Nos.5 and 6, ' Examining the provisions of section 8-B of the Political Parties Act, 1962 it is obvious that it provides that if a member of a House (which includes a Provincial Assembly by virtue of the explanation to section 8-B)---
(a) having been elected as such as a candidate or nominee of a political party; or having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election. Defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member, unless he has been re-elected at a bye-election held after his disqualification.
25. The words defection or withdraw have not been defined in the Act. The term defection was for the first time defined by Ordinance VIII of 1991 by substituting the explanation at the end of section 8-B of the Act, as follows:--- "Explanation.---For the purpose of this section -- -(a) a member of a House shall be deemed to defect a political party if he --
(i) votes or abstains from voting in such House contrary to any direction issued by the disciplinary committee of the Parliamentary Party to which he belongs or, if there be no disciplinary committee of such Parliamentary Party, by the Parliamentary Party itself, without obtaining in either case prior permission of the disciplinary committee or as the case may be of the Parliamentary Party, and such voting or abstention has not been condoned by the Parliamentary Party within thirty days from the date of such voting or abstention.
(ii) accepts any office of or under the Government of a political party other than the one to which he belongs without obtaining the prior permission in writing of the Parliamentary Party to which he belongs;
26. But this Ordinance was allowed to lapse by afflux of time, therefore, in the absence of statutory definition reliance has to be placed on the ordinary meaning of the words 'defection' and 'withdraw' as given in the dictionaries. I would, therefore, proceed to consider the means of these words.
OXFORD CHAMBER DICTIONARY. 1988 ED: Gives the following meaning of the words 'defect' and 'defection':--- "defect, difekt, n. a deficiency; a want: imperfection: blemish: fault. - vi.i. (di-fekt) to desert one's country, a cause, transferring one's allegiance (to another). Defection .a failure. a falling away from duty:. Revolt."
OXFORD CONCISE DICTIONARY. 1982 ED: states the following meaning of the words 'defect' and defection':--- "defect. N. & v.i.
1.n. (or dfekt). Lack of something essential to completeness: shortcoming, failing, (has the -s of his qualities, the particular ones that often accompany his particular virtues): blemish: amount by which things falls short.
2. v.i. Desert, esp. To another country etc." "defection. n. Falling away from allegiance to leader. Party, religion, or duty, desertion, esp. To another country etc."
27. H.M. Seervi, a prominent jurist of India in his book entitled "Constitutional Law of India", III Ed: Vol. II at page 2723 has quoted with approval, the following meaning of the word 'defection from CONCISE OXFORD DICTIONARY. 6TH ED:--- "Defection" is defined as "falling away from a leader, party, religion or duty; desertion, especially to another country etc."
28. Before proceeding further, it may be useful if at this stage the definition of the word "withdraw" is examined as the same is also used in section 8-B of the Act.
"According to "OXFORD CHAMBER DICTIONARY. 1988 ED:--- ' Withdraw means with-dro, or with- .v.t. To draw back or away; to take back or away: to take from deposit or investment, as money: to remove (with from): to recall, retract, -v.i. To retire; to go away; to take back what one has said, or to recall a motion one has proposed:"
"According OXFORD CONCISE DICTIONARY 1982 ED:--- ' WITHDRAW. (-dh-) v. (withdrew': -n) 1. v.t. Pull aside or back (withdrew curtain, one's hand) take away, remove, (child from school, coins from circulation, money from bank, horse from race, troops from position, favour etc., from person); retract (offer, statement, promise, or abs.; in imper., as demand that a speaker shall retract something as unparliamentarily etc.); (in p.p.) mentally detached, unsociable.
2. v.i. Retire from presence or place, go aside or part;
29. The term defection was also considered by jurists and the Supreme Court and Sindh High Court.
H.M. Seervai in his book entitled "Constitutional Law in India" III Ed. Vol-IL at page 2723 commented on the term 'defection' by saying that "Defection in India generally takes place because political support is sold for money or for promise of ministers hip or public office, and the defector may defect again for more money and promise of more important ministers hip or public office." He considered the argument against preventing defection and said: "It is said that to prevent defection from a party is to deny the right of dissent which is vital to the survival of democracy, and a. Member of a political party ought to be free to publicly oppose the policy of his party if he considers it wrong, and even to leave the party, or join in bringing down the Government formed by the party. In the abstract, this argument may appear to admit of no answer. But it ignores a large number of factors which must be taken into account by reference to the kind of democracy which has been set up by our Constitution and to the conditions under which that democracy must operate." He gave the reasons how and why a successful candidate is returned to the Parliament. He said "The successful candidate is almost invariably returned to Parliament not because of his personality nor because of his judgment and capacity, but because of his party level. His personality and his capacity are alike unknown to the great mass of his constituents. A good candidate can secure a number of votes because he is good; a bad candidate can lose a few because he is bad. Local party organizations therefore do their best to secure a candidate of force and character. But his appeal is an appeal on his party's policy. He asks his constituents to support the fundamental ideas which his party accepts. His own electioneering is far less important than the impression which his party creates in minds of the electors. The voter for or against the Government of for or against the party to which he belongs.
The 'national' speaker who comes into a constituency to urge electors to support the candidate probably knows nothing of him. He commends the candidate because he supports the party he would condemn him with equal pleasure if he did not. Many of the posters are prepared and circulated by party headquarters. The candidate's own posters emphasize his party affiliation. He possesses an `organization' because the party supporters in the locality --stimulated, if necessary, by the party headquarters --- believe in the party policy sufficiently strongly to give time and trouble to its work."
' For these observations he referred to 'Cabinet Government' by Jennings, 3rd Edn. Page 472_
30. The question of defection came up for consideration in our Supreme Court in the case `Khawaja Ahmed Tariq Rahim v. Federation of Pakistan and others PLD 1992 SC 6.46, Shafiur Rahman, J. At page 666 of the report observed:- "The preamble to our Constitution prescribes that "the State shall exercise its powers and authority through the chosen representatives of the people". Defection of elected members has many vices.
In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re-election. This Will make him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State. The normative moorings of the Constitution prescribe that "sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust and the State is enjoined to "exercise its powers and authority through the chosen representatives of the people". An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He cannot on the mandated Constitutional prescription participate in the exercise of State power and authority. Even by purely secular standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but "mockery of the democratic Constitutional process". The other enumerated evils contained in first ground precede, accompany or follow the defection. That there had been taking defections has not been seriously disputed, nor the fact that the defectors were quite often rewarded with posts and prizes
31. On defection a passage from the opinion of Mr. Rustam S. Sidhwa, J. In Ahmed Tariq Rahim case (Supra) may also be quoted here. It is as follows:--- "26. Coming to the question of defection and horse-trading, the position is not so easy as one would imagine. Defection means the change of party allegiance or loyalty by a legislator, i,e, leaving one political party and joining another where defections are few, they retain their Character as such, where they are large and unblock, they assume the character of a "split", i,e, a break of the party into two, the smaller being called "the splinter group" or by other catchy names."
32. Reference may also be made to the observations of the Full Bench of the Sindh High Court, in the case of Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. Page 72. The first two judges of the Bench now adorn the Supreme Court. It was observed at page 72 of the report as follows:--- "Instances of corrupt practice and horse-trading have been given. At a time when no confidence motion was moved by the opposition party three members are stated to have defected from IJI to PPP and immediately after the no-confidence motion was defeated they were made Ministers.
Such defections always cause imbalance and disturb the composition of Assembly. The term "horse-trading" refers to defectors who change their party loyalty for personal gains. Defection has been considered as a serious problem in a party basis democratic Government. If a member elected on a party's ticket or support defects for personal gain and transfers his loyalty to the Opposition or any other party or on major issues withdraws his support then morally he loses the right to represent the people who had voted on certain representations. Furthermore, frequent defections from one party to another may create problem in the formation of the Government and shake stability and confidence not only of the Government but the administration as a whole. The problem of defection was noticed as early in the year 1962 when Political Parties Act, 1962 was enacted in which change of party after being elected on party ticket or nomination was declared to be a disqualification to continue as a member."
33. Syed Sharifuddin Pirzada referred before the full Bench of the Sindh High Court in Khalid Malik's case a passage from the "Speeches and Writings of Mr. Jinnah" Vol. II collected and edited by Jamiluddin Ahmed, which recounts an incident of Quaid-e-Azam Muhammad Ali Jinnah, which demonstrate his abhorrence to corruption in the politics. He writes:--- "He also contradicted another report to the effect that he had offered the League ticket to Khan Bahadur Haji Maula Bukhsh if he signed the League pledge. To say so, added Mr. Jinnah, was not only an insult to Mr. Maula Bakhsh, but was also a serious charge against himself. 'It would be highly improper for me to interfere or to influence the activities, proceedings and decisions of the Parliamentary Boards, Provincial or Central, or for that matter, of any tribunal set up by the League.
No inducement can ever be given to any person, howsoever high he may be, in joining the Muslim League. It will be corruption to do so and no honest man can be a party to it."
' Such was the principle enunciated by the founding father of Pakistan.
34. Proceeding to consider the evidence led by the parties, first of all I fmd the most significant piece of evidence produced by the petitioner through Mr. Habibullah Farooqui, Director, News, PTV, Islamabad (Exh.P/6) is a Video film (Exh.P/6/1) which was televised on PTV during the `KHABARNAMA' which was a coverage of Press conference which was held by Mr. Aftab Ahmed Khan Sherpao whereat according to Khabarnama it was stated that he had requisite majority to win the "No- Confidence" motion against the petitioner, which support the petitioner's, claim as made in para. 10(a) of the Reference against Shad Muhammad Khan. But according to the respondents this was an 'Iftar Party' and which, according to them, was a social gathering. However, we have seen on VCR the film of `KHABARNAMA' televised on 21-2-1994 at 9-00 p.m. In Court Room in the presence of large audience including the Press reporters of various newspapers. According to the PTV news reader it was a press conference of Mr. Sherpao. The news reader read out the names of 42 MPAs who participated in Press conference which included the names of the two respondents. However, according to respondents after the dinner they had left the so-called Iftar Party or social gathering.
Some photographs of the function were published in the newspapers of 22nd February, 1994. One such photograph was published in the 'MUSLIM' Islamabad of Tuesday the 22nd February, 1994 with a footnote "Aftab Ahmed Khan Sherpao presiding over the N.-W.F.P. Opposition's Parliamentary Party meeting in Islamabad on Monday". The respondent Mr. Shad Muhammad Khan when confronted with this photograph (Exh.P/2/4), he admitted that he is shown sitting in the photograph. The photo shows that he is sitting next to Mr. Sherpao on his left facing the camera.
Respondent Akhtar Hussain Shah is also shown sitting on the right side of Mr. Sherpao 2nd from him facing the camera. The same photograph (Exh.R.2/2/3) was published in daily `Nawa-e-Waqt' dated 22nd February, 1994, with the footnote {{URDU TEXT}} ' If the matter rested there it could be argued that the news and the names announced by Mr. Sherpao at the Press conference or the so-called Iftar Party were the act of Mr. Sherpao and mere presence of the respondents could not prove that they had defected. But on the 23rd February, 1994 'FRONTIER POST' published a news report by Qaiser Butt and Azizullah Marwat, with the caption `PIR SABIR WAITS FOR A MIRACLE', which was filed by both the respondents alongwith their written statement which is available on the record at page 139. It is stated in 'FRONTIER POST' newspaper of February 23, 1994:--- "PIR SABIR WAITS FOR A MIRACLE.
' The opposition has been able to win over the support of the Deputy Speaker Shad Muhammad and a Provincial Minister Akhtar Shah, in support of its move against the Chief Minister both of them belong to the ruling PML(N). All together seven ministers and two advisors have joined the opposition camp after resigning from the Sabir Shah cabinet during the last one month. The six ministers and two advisors were maintaining Independent position in the cabinet."
' Still the respondents could say that it was not their statement but it is a Press report. However, by filing this newspaper clipping alongwith their written statements, both the respondents owned it.
Therefore, they admitted or at least impliedly admitted that they were supporting the No- Confidence motion against Sahibzada Sabir Shah the Chief Minister.
Further at no stage on 21st or 22nd or on 23rd February, 1994 they admittedly denied the news of KHABARNAMA' or the reports appearing in `FRONTIER POST' or `NAWA-E-WAQT'.
35. Another important piece of evidence that shows that the two respondents' had joined Mr. Aftab Ahmed Khan Sherpao and his group is the travelling from Islamabad to Peshawar by PIA Flight No,PK-0441 which left Islamabad in the morning. The manifest of the passengers (Exh.P/6) travelling by PIA by the said flight contains the names of 44 passengers out of which 42 appear to be the same names as were announced in `KHABARNAMA' that they were with Mr. Sherpao which included the two respondents at S.Nos. 18 and 38 of the manifest (Exh.P/6). The remaining two persons, it was submitted at the bar, were the security guards. All these persons returned same day in the afternoon by PIA Flight No,PK-0442. The manifest is Exh.P/8/1. This manifest shows that the persons who travelled in this flight were the same 42 in number besides security guards. The name of respondents Akhtar Hussain Shah appears at Sr. No,11 and Shad Muhammad Khan at Sr. No,17. A question was asked in cross-examination from the respondent Shad Muhammad Khan whether he travelled by PIA on 23rd February, 1994 from Islamabad to Peshawar with the members of Opposition, he admitted and explained that he could not say whether there were Opposition members and added that two members namely, Muhammad Ali Zafar and Zafar Azam came to him and asked him if he wanted to go to Peshawar he should accompany them on the plane. It may be added that in the written statement he denied the factum that he travelled from Islamabad to Peshawar. A similar question was asked in cross-examination from Akhtar Hussain Shah whether he travelled from Islamabad to Peshawar in the company of opposition members.
He admitted the fact and added that he thought it advisable to board the plane from the security point of view as there were news in the Press about the violence and "Gherau" of Provincial Assembly. However, in the written statement he has also denied that he travelled from Islamabad to Peshawar. Now, firstly, Akhtar Hussain Shah being the member of PML(N) Parliamentary Party, if he felt the need of security and he had not defected he should have asked his own leader Syed Sabir Shah, who could provide him better security, he being the head of Government. Then the respondent's eturned from Peshawar to Islamabad by PIA the same afternoon with the same members of Opposition. Where was the question of security at Islamabad as it is nobody's case that at Islamabad there was any security problem. Yet another important link in the chain of events shows that the two respondents had defected is that they travelled from the airport to the Assembly Hall in a Coaster in which their friends in the opposition group had travelled to the Provincial Assembly. Then from the Assembly they again travelled to Peshawar airport for boarding the plane in which all the 42 members who were supporting Mr. Sherpao including the two respondents travelled to Islamabad. Further, it is in evidence that after the notice of No-Confidence motion was given on 3rd February, 1994, Mr. Shad Muhammad Khan became non-available to his party till 23rd February, 1994 when voting on No-Confidence motion was due to be held which could not be so held. Indeed in the statement attributed to Mr. Sherpao and reproduced elsewhere herein Mr. Shad Muhammad Khan was with him from the day the No-Confidence motion was filed i,e, 3-2-1994. It is in evidence of Mr. Anwar Kamal, MPA (Exh.P.1/1) that when he raised point of order about presence of the two respondents in the Assembly on the ground that they were strangers, the members of the Opposition started hue and cry and Mr. Abdul Akbar, Mr. Saleem Saifullah, Mr. Habib-ur-Rehman Tanoli, Mr. Iftikhar Mehmand and Mr. Haleem Khatak, on behalf of the opposition started speaking in favour of the two respondents. After that the Speaker gave his ruling and ordered the two respondents to leave the House. On that the Opposition started rampus. On this point the question and answer are as follows:--- Q. Was your point of order according to rules?
A. Although the session of N.-W.F.P. Assembly which took place on 23rd February, 1994, was convened only to consider resolution of Vote of No-Confidence, however I had raised point of order and the same was admitted. I am not aware that such point of order can be raised. According to me point of order can be raised at any time. Q. Why did you raise a point of order about the disqualification of Shad Muhammad Khan and Akhtar Hussain Shah?
A. Under the Rules of Business of the Provincial Assembly no stranger can sit in the session and both Shad Muhammad Khan and Akhtar Hussain Shah were strangers. I vehemently raised point of order.
' In support of the fact that Shad Muhammad Khan deserted his party and avoided attending the meetings, I find a Press clipping placed on record by the respondents themselves along with their written statements which contains a statement attributed to Mr. Sherpao that Shad Muhammad Khan was with him. I reproduce a passage from the Press report by Tariq Butt (The News, dated 23- 2-1994 page 140 of the record). It reads as follows:- "SHERPAO CONFIDENT OF MAJORITY VOTE, Sherpao claimed that more than 45 MPAs were supporting him and said, "the number is increasing hour by hour". To a question, he said that Deputy Speaker Shad Khan, who disappeared from the public scene the day the No-Confidence motion was filed three weeks ago, was with him."
' Since the respondents themselves filed the Press clipping they owned the truthfulness of the statement of Mr. Sherpao quoted above otherwise the reasons given by Mr. Shad Muhammad Khan that after 3rd February, 1994 he was looking after his ailing mother and went to Sindh for hunting and to Karachi for visiting another ailing member of Provincial Assembly, namely, Seth Saifullah are too good to be believed. A member loyal to his party in crisis could not have left his party in difficulty at a time it was facing No-Confidence motion and went to Sindh for hunting or visiting a sick member of the Assembly. He is belied by the Press statement of Mr. Sherpao published and quoted above.
36. On the question of evidence of defection, Mr. Khalid Anwar, learned counsel for the petitioner, submitted on the basis of Article 2, clause (4) of Qanun-e-Shahadat that a fact is said to be proved when after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists, ' Article 2(4) of the Qanun-e-Shahadat reads as follows:--- "2. Interpretation.---(1) XX XX XX
(2) XX XX XX XX XX
(3) XX XX XX XX XX
(4) A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
37. On the other hand, Syed Sharifuddin Pirzada, learned counsel for the respondents, in both the cases, relied on the observation of Cornelius, J (as his Lordship then was) in case of Muhammad Saeed and four others v. Election Tribunal West Pakistan and others PLD 1957 SC 91 in support of his contention that the proceeding under section 8-B of the Political Parties Act, 1962 are of quasi- criminal nature and therefore a strict proof of defection that the respondents have defected from Pakistan Muslim League (Nawaz Group) is required. He relied on the following passage at page 123 from the cited judgment:--- "A charge of a corrupt practice is a quasi-criminal charge and, as the Tribunal has stated in its report, the great volume of authority in the corpus of election law is to the effect that such an allegation must be treated, for the purposes of evidence, on the principles applicable to the trial of criminal charges. One such principle is that in a case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person."
38. But this was a case of an election petition before an Election Tribunal involving a charge of corrupt practice. It is in that context the observations were made in this very judgment. The next issue considered by the Supreme Court was, namely, "Was any bribe, as alleged, offered or given to Messrs Ghulam Haider and Nawazish Ali If so, to what effect?" Before proceeding further it may be stated that under the Representation of People Act, 1976 section 82 punishment is provided for corrupt practice with imprisonment for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both. Section 82 reads as follows:- "82. Penalty for corrupt practice.---Any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both."
' But under section 8-B of the Political Parties Act, 1962 if allegation of defection is established it entails no imprisonment or fine but only that the respondent is disqualified from being a member of the House for the unexpired period of his term as such member but he is given the liberty to re- seek election at a bye-election held after disqualification. Therefore, in such a case the standard of proof will not be in accordance with the rule of strict proof or proof beyond reasonable doubt but the rule applicable will be as laid down in civil matters in accordance with the provisions of. Article 2(4) of Qanun-e-Shahadat quoted hereinbefore. Even otherwise in my opinion the rule of strict proof is satisfied in this case.
39. Syed Sharifuddin Pirzada also referred to the case of Muhammad Tariq Chaudhry v. Masroor Ahsan PLD 1991 Lah.
200. The case is distinguishable on facts. Syed Sharifuddin Pirzada also referred to the case of Ghulam Mustafa Khar v. Chief Election Commissioner of Pakistan and others PLD 1969 Lah.
602. In this case the facts as stated in the report were that the petitioner was elected member of the National Assembly of Pakistan as a member of Pakistan Muslim League. Subsequently he was charged to have joined the Opposition party and a resolution to that effect was passed by the Muslim League Parliamentary Board. The leader of the House was authorized to raise question of disqualification of the petitioner with the Speaker of the National Assembly. Consequently the leader of the House moved the Speaker for making a reference under Article 104(2) of the Constitution of Pakistan of 1962 to the Chief Election Commissioner as the petitioner had become disqualified from being a member of the National Assembly in view of the provisions contained in section 8(2) of the Political Parties Act, 1962 read with Article 103(2)(e) of the Constitution. The Speaker immediately made the reference to the Chief Election Commissioner upon which the petitioner filed a petition. While dismissing the petition it was observed as follows:--- "Section 8(2) of the Political Parties Act, 1962 contains a salutary principle which is recognized as a well-established convention wherever a democratic system of Government is followed and where representatives of the people are elected as candidates of a political party. The need for making a legislative provision here may have been felt in view of the experience of the past when frequent crossing of the floor of the House by the members took place which not only violated a well- established democratic convention but also led to the instability of the Government. The law now provides that such a conduct will lead to the disqualification of the member. But to deprive a person of his seat in the Assembly on this ground it would have to be conclusively found that he has withdrawn from the party. It will be for consideration whether the hob-knobbing of a member with another party or his acts of indiscipline from the point of view of the party amounts to his withdrawal from the party notwithstanding the fact that he asserts that he continues to be a member of that party and has neither joined any other party nor has voted against the party in the House and continues to sit on the party benches. We have no doubt that these and such other questions which will arise before the Chief Election Commissioner will be determined by him after providing adequate opportunity to the petitioner to be heard."
' It will be seen from the observations made above that hob-knobbing of a member with another party or his acts of indiscipline from the point of view of his party may amount to his withdrawal from the party notwithstanding the fact that he continues to assert that he is a member of that party and he has neither joined any other party nor has voted against the party in the House and continues to sit on the party benches as was observed in the case of Ghulam Mustafa Khar (Supra).
40. But in the present case as stated before Mr. Shad Muhammad Khan did not attend any meeting of his political party. He did not even attend the session of the Provincial Assembly on 16-2-1994 when motion of No-Confidence was tabled and did nothing in support of his political party. Indeed, he had gone to Sindh for hunting or to enquiring about the health of a friend member of the Assembly or allegedly attending his sick mother, which fact he did not prove by producing any documentary evidence or otherwise. About his attending the Parliamentary Party meetings or dinners all the four MPAs produced on behalf of the petitioner, namely, Mr. Anwar Kamal, Sardar Mehtab Ahmed Khan Abbasi, Mr. Tariq Swati, Sardar Ghulam Nabi besides Pir Syed Sabir Shah denied that Mr. Shad Muhammad Khan ever attended after the opposition decided to introduce the motion of No-Confidence any party meetings or dinner meetings. His conduct on 23-2-1994 after the Speaker adjourned the session and he occupied the chair was not consistent with his claim that he was a member of the ruling party. So far as Mr. Akhtar Hussain Shah is concerned he did attend the meeting at Mansehra on 10-2-1994. After that he too changed his loyalty completely and even on 20th February, 1994 resigned from the Minister ship at a crucial time when the No- confidence motion had already been introduced in the Assembly against the petitioner's Government. His conduct on 21st February, 1994 by attending Opposition meeting is also very significant. It was claimed that on 23rd February, 1994, Mr. Shad Muhammad Khan and Mr. Akhtar Hussain Shah occupied their benches, which were allotted to them, it was so because each member has to sit on his allotted bench under rule, till permission is granted to him to change his seat and he accordingly does so. In my opinion on taking a dispassionate view of the entire evidence I have reached the conclusion that the respondents had defected or at least withdrawn from the Pakistan Muslim League (Nawaz Group) and ceased to be the members of the N.-W.F.P.
Assembly from 23rd February, 1994. I entertain no doubt in my mind in this regard.
41. It is in evidence that main grievance of Akhtar Hussain Shah was that his rival candidate was allowed to address a public gathering at Mansehra on 10-2-1994. While the main grievance of Mr. Shad Muhammad Khan was that he was given a bad car. Another reason stated was that the agreement was not adhered to. Could such reasons furnish cause to members to defect or withdraw from the party. What was the real cause of defection or withdrawal, except what petitioner's witnesses said that respondents particularly Shod Muhammad Khan wanted money. I look it from another angle. The party in power, who had very slim majority and which depended on the support of the respondents to remain in power could not have afforded to annoy the respondents for such petty reasons as alleged.
42. For the reasons stated above I hold that both the respondents in the two references had withdrawn and/or defected from their political party and the process of withdrawal and/or defection which started from 3-2-1994 was completed on 22-2-1994. Therefore, they stand disqualified from being members of the N.-W.F.P. Assembly from 23-2-1994 for the unexpired period of their term as such members.
43. Before parting with the case I would say that defection of a member of National Assembly or a Provincial Assembly from his party if elected on its ticket or if he joins the party any time after election may tend to be destructive of the entire democratic or political set-up. To defect from his own party is so immoral, unethical and politically corrupt that it should not be accepted even in the name of freedom of association, or action. If a member wants to change his loyalty from one party on whose ticket or on whose support he has secured a seat in the Assembly to another party then the only honourable course for him, as an honourable member, is to resign from the Assembly and seek reelection, if he thinks that he cannot agree with the party programme, line or action or policy unless he is given freedom to act under the party's constitution, or rules or with its permission. If a member is allowed to defect on any ground proper or improper or flimsy, such course will not only destabilise the Government, if the member belongs to the ruling party but in my opinion it may also destabilise whole political structure and endanger country's freedom, political or otherwise and even its security.
44. In the result I accept the references as stated before.
(Sd.)
Justice (Retd.) Naimuddin, Chief Election Commissioner ' JUSTICE MUHAMMAD BASHIR KHAN JEHANGIRI (MEMBER)---These two identical References under section 8-B of the Political Parties Act (III of 1962) (hereinafter called as the Act) have been made by Sahibzada Pir Sabir Shah, the Leader of the Parliamentary Party of Pakistan Muslim League (N)
N.-W.F.P. Against Mr. Shad Muhammad Khan and Mr. Akhtar Hussain Shah for having defected, were/are disloyal and disobedient to Pakistan Muslim League (N) and were liable to be disqualified as Members of the Provincial Assembly N.-W.F.P. For the remaining period of their term in accordance with the provisions of section 8-B of the Act."
2. Since both the references have arisen out of identical facts and common questions of law are involved, they are being disposed of by this single order.
3. Besides the two respondents who were admittedly elected to the Provincial Assembly of N.-W.F.P.
As candidates of the Pakistan Muslim League (N), the party had secured 14 other seats also. The Pakistan Muslim League (N) is stated to have been able to form a coalition Government in the N.- W.F.P. With the support of other Political Parties and the independent Members. The petitioner was also elected as the Leader of the House and also the Chief Minister of N.-W.F.P. On the 20th October, 1993 by securing the confidence of the majority of the Members of the House. On the same day Shad Muhammad Khan respondent "being a Member of Pakistan Muslim League (N)" was elected as the Deputy Speaker of the Provincial Assembly. It is alleged that the Pakistan Peoples Party (P.P.P.) being the Opposition Party "started man oeuvres to topple the Government of the petitioner by resorting to illegal and corrupt means" and further that "with the object to fulfill their illegal designs the Pakistan People Party and its supporters in the House presented on 3rd February, 1994 a Motion of No-Confidence against the petitioner." It was also urged in the two References that "at the time of presentation of this motion and even before that time it was claimed by the Pakistan People Party Group Leader that they had sufficient majority to carry the vote of 'No-Confidence' motion against the petitioner." According to the petitioner, the `No-Confidence' motion was the most serious and crucial issue for Pakistan Muslim League (N), therefore, in order to cope with the situation, a meeting of the Parliamentary Party of Pakistan Muslim League (N) "was immediately summoned on 5-2-1994" and being a critical question for the Parliamentary Party, all the Members were duly informed of this meeting and were required to participate in the same." It was further averred in the references that "to the utter surprise of the petitioner and other Members of the Parliamentary Party, Shad Muhammad Khan, respondent, who was also a Deputy Speaker of the Assembly and Syed Akhtar Hussain Shah respondent who was also a Minister failed to attend this meeting and their absence was conspicuously felt." They claimed to have also "received certain information from different quarters that the Pakistan Peoples Party was trying to win over the respondents and that they were going to vote with the Opposition against their own party in the 'No-Confidence' move." In order to furnish another opportunity to the respondents to explain their position, the Secretary of the Parliamentary Party was once again required to establish contact with them. The respondents were, however, alleged to have been deliberately avoiding meeting with the Secretary. It was also pointed out that Shad Muhammad Khan respondent was being kept hidden by the Opposition so that the petitioner or for that matter the other Members of his party should not be able to make any contact with him while Syed Akhtar Hussain Shah respondent did not attend the meeting of the House which was convened on 16-2-1994 to table the motion of No- Confidence' against the petitioner despite being the Member of the petitioner's Cabinet which clearly demonstrated that despite being the Deputy Speaker and a Member of the Cabinet, they were avoiding to meet with their Parliamentary Members lest they should be "called upon to explain their position for having defected their party and for supporting the No-Confidence' motion against the petitioner." Another meeting of the Parliamentary Party of Pakistan Muslim League (N) was alleged to have been held on 17-2-1994 to discuss, inter alia, the defection of the respondents and with an object to afford them another opportunity but both of them did neither attend the meeting nor could be contacted at their residences or offices. It was also claimed in the references that "throughout the period the Press had been widely and loudly reporting that the respondents had joined the Opposition Camp and were going to support the 'No-Confidence' motion against the petitioner." On 21-2-1994, "the petitioner went on to urge" a Press conference was held by Mr. Aftab Ahmad Khan Sherpao (the Leader of the Opposition) to demonstrate the strength of the Opposition" wherein the two respondents "were conspicuously present sitting by the side of Mr. Aftab Ahmad Khan Sherpao. In this context reliance has been placed" on some Press photographs and the `Khabarnama' of P.T.V. On the national network." In this view of the matter, "the Parliamentary Party of Pakistan Muslim League (N) in its meeting held on 22-2-1994 decided to disqualify the respondents under the provisions of section 8-B of the Act as amended by Ordinance No,XXX of 1993." This decision is said to have been duly conveyed to the Speaker on 23- 2-1994, the date on which the motion of No-Confidence' had to be voted upon. It was also maintained in the references that on the aforesaid date the Opposition brought to Peshawar and then took back to Islamabad all its Members and supporters id a chartered plane including the two respondents. On a point of order that the respondents had joined the Opposition Camp and "had defected their party ceasing to be Members of the House they had no authority to participate in the proceedings being strangers, the Speaker was requested to expel them from the House." On this point of order, it was urged, the whole Opposition Group raised hue and cry and agitated that the respondents were neither disqualified nor were strangers in the House. The respondents were, therefore, directed by the Speaker to leave the House but they refused to obey the orders of the Speaker despite assistance rendered by the Sargeant-At-Arms. Notwithstanding the pandemonium that ensued, the Speaker is said to have asked to exercise their vote on the `No- Confidence' motion but the Opposition was not prepared to vote for the only obvious reason that they did not have majority and insisted that the disqualified Members (respondents herein) should be allowed to vote but to no avail, therefore, the Speaker ruled "the motion of `No-Confidence' to have been dropped and' adjourned the House to a further date. In para. 10 of the references the conduct of the respondents as defectors from Pakistan Muslim League (N) was highlighted which is being reproduced hereunder:---
(a) That on 21-2-1994 a video film was televised on PTV during the "Khabarnama" which was a coverage of. a Press Cohference held by Mr. Aftab Ahmad Khan Sherpao to show to the press and public that he had the requisite majority to win the `No-Confidence' motion against the petitioner.
The respondents were shown sitting next to Mr. Sherpao during the Press-Conference.
(b) That the National Press carried this news along with the photographs including the respondents who were present in the said Press conference held by Mr.Aftab Ahmad Khan Sherpao. Till this day the respondents had issued no statement contradicting the above facts.
(c) That since 5th February, 1994 the respondents had failed to attend any meeting of the Parliamentary Party, they had shown their disloyalty to their party by joining the Opposition on a very crucial issue.
(d) That the formation of Government is in essence the most significant object and purpose of a political party. Such political party can remain in the Government if it enjoys the confidence of the majority of the members of the House. Obviously to stay in the Government, the support besides others, of the members of the House who have been elected on the ticket of the political party as its nominee is fundamental and most essential. If any member by his action or inaction betrays his political party which could result in the defeat of the Government, there cannot be any other glaring example of defection. Exactly this is what has been done by the respondents. It is not merely because of their inaction that they intended to cause harm to their party but are actively joining with the Opposition with an object to topple the Government of PML(N) (their party) and its supporters in N.-W.F.P.
(e) That if a member elected on a party ticket subsequently transfers his loyalty to the Opposition or any other party or on a major issue, withdraws his support then he is a clear and flagrant defector and would stand disqualified from being a member. The respondents in the instant case as is clearly established from the facts and the circumstances stated above and the material produced herewith, have not only on the most crucial issue withdrawn their support but also to dislodge the Government of their own party have joined hands with the Opposition.
(f) That till this date the respondents have not shown by word or conduct that they are still loyal to their political party and are prepared to demonstrate their loyalty and to endeavor like other Parliamentary Members to defeat the 'No-Confidence' motion.
(g) That since the day the. No-Confidence motion has been moved the respondents are not available either at their residence or any other place of their abode. There are sufficient materials in the shape of Press reports that they are outside N.-W.F.P. And are putting up with the Opposition Camp to avoid any contact with their political party.
(h) That the respondents had also filed writ petition in the Peshawar High Court (No,231 of 1994 and titled (Shad Muhammad Khan v. Sahibzada Pir Sabir Shah etc.) challenging the earlier decision of the Parliamentary Party (PML) (N) disqualifying them under the amended law (Political Parties Act)
Ordinance No,XXX of 1993). Although they have admitted that they were elected on the PML (N) ticket there is not a single instance stated in the petition to contradict that they have not joined the opposition camp. Nor have the respondents explained their conduct not supporting their party on this most vital, major and crucial issue. They have not even explained/contradicted all the Press reports showing their association with the opposition.
(j) That even though on 23rd February, 1994 during the proceedings of the House, the respondents had ample opportunity to contradict the defection attributed to them, they did not utter a single word to assert their loyalty to their party in order to clarify that they have not defected and are not supporting the opposition camp on the 'No-Confidence' motion, on the other hand their conduct in the House duly demonstrates and is consistent with the fact that the respondents are defectors.
' In the reference against Syed Akhtar Hussain Shah respondent the following additional ground was taken up:---
(k) That with an object to support the opposition on the "No-Confidence Motion" and to harm his own political party on this most crucial issue, the respondent at this critical stage had resigned from the Cabinet. This was meant to cause a blow to the Government of PML (N) in N.-W.F.P
4. It was, therefore, prayed that "it may be determined that the respondents having defected from their party are disqualified from being members of the House from the date of defection, i,e,, the 5th February, 1994 under the provisions of section 8-B of the Act and are not entitled to remain as members of the House for the remaining period of their term.
5. The two respondents contested the references and traversed the allegations made therein, strenuously denying, inter alia, the charge of having defected the PML (N). While denying the averment that the Pakistan Peoples Party had started man oeuvres to topple the Government of the petitioner right from the beginning, it was averred that the petitioner who had entered into an agreement with the independent M.PAs. And which had been counter-signed by Begum Nasim Wali M.PA. From National Awami Party, was flouted, amongst other reasons, that led to the beginning of efforts to change the Government in N.-W.F.P. It was categorically denied that the respondents were evading contacts with the Secretary of the Parliamentary Party because no meeting was convened on the 5th February, 1994. Shad Muhammad Khan respondent denied that he had been kept hidden by the Opposition while Syed Akhtar Hussain Shah respondent refuted the assertion that any meeting of the Pakistan Muslim League (N) Parliamentary Party was held on 16- 24994 or 17-2-1994 and also that he had remained inaccessible and stressed that he had attended the public meeting held at Mansehra on 10-2-1994 under the auspicious of the Pakistan Muslim League (N). It was also emphasized that the so-called meetings of the Parliamentary Party on 9-2- 1994 and 12-2-1994 were informal dinners hosted by Anwar Kamal Khan MPA and the discretion not to attend dinner of one M.PA. Or of another could not be dubbed as an act of defection from or disloyalty to a political party. It was vehemently denied that "get-together of M.PAs. Of N.-W.F.P. In Islamabad on 21st of February, 1994 was in any way a demonstration of the strength of the Opposition on 'No-Confidence' motion "but it was an Iftar Party which was attended by a large number of M.PAs. Of the N.-W.F.P. Provincial Assembly including the respondents." It was defended on the hypothesis that "it is not uncommon for Members of opposing political parties in N.-W.F.P. To fraternize on social occasion in the true spirit of Pakhtoon traditions and that the respondents were merely upholding such values by attending the Iftar Party." Replying to the allegations contained in para. 8 of the references it was submitted that "the drama staged by the petitioner in collusion with the Speaker of the Assembly, of respondents' disqualification and ultimate disruption of the proceedings was an exercise to forestall the Constitutional process." It was further maintained that "by design the Speaker rushed through proceedings on 23rd February, 1994, denying the right of respondents to speak against an illegal point of order and unlawful ruling of the Speaker which referred to the so-called disqualification decision of Pakistan Muslim League (N) of 22nd February, 1994." It was lastly urged that the factum of withdrawal by the petitioner of the so-called decision to disqualify the respondents and equally the withdrawal by the Speaker of his ruling, demerits the allegations contained in para. 10." On legal plane it was urged that section 8-B of the Act was ultra vires the Constitution and repugnant to the Injunctions of Islam; that the references were incompetent, misconceived, mala fide and not maintainable and; that "the actions of the applicant/petitioner were illegal, malicious, opposed to the principles of natural justice and without lawful authority."
6. The pleadings of the parties thus raised gave rise to the following issues:---
(1) Whether section 8-B of the Political Parties Act, 1962 is ultra vires the Constitution and repugnant 'to the Injunctions of Islam? OPR.
(2) Whether the references are incompetent, misconceived, mala fide and not maintainable? OPR.
(3) What is the effect of the withdrawal of the decision by the Parliamentary Party? OPR.
(4) What is the effect of the withdrawal of the ruling of the Speaker? OPR.
(5) Whether the respondents have defected from Pakistan Muslim League (Nawaz Sharif Group), if so, what is its effect? OPP.
(6) Whether the respondents have become disqualified from being members of the Provincial Assembly of N.-W.F.P. If so, from what date? OPP.
(7) Whether the Election Commission of Pakistan has jurisdiction to determine the vires of section 8-B of the Political Parties Act, 1962? OPP.
(8) Relief.
7. The petitioner, in order to lend support to his references has substantially placed reliance on (i) the proceedings Exh.P.3/2, Exh.P.4/2 and Exh.P.5/2 of the Parliamentary Party respectively dated 5- 2-1994, 17-2-1994 and 22-2-1994; (ii) Affidavits filed by Mr. Anwar Kamal, Sardar Mehtab Ahmad Khan Abbasi, Mr. Muhammad Tariq Swati, Sardar Ghulam Nabi Khan and that of the petitioner respectively placed on record as Exh.P.1/1 to Exh.P5/1; (iii) Photo copy Exh.5/1/1 of an agreement dated 20-10-1993 between the Pakistan Muslim League (N) and Awami National Party and the independent M.P.As.; (iv) Photo copy of letter Exh.P.5/X-2 dated 22-2-1994 addressed by the petitioner to the Speaker N.-W.F.P. Provincial Assembly; (v) photo copy Exh.P.5/3 evidencing the receipt of the aforementioned letter of the petitioner on 23-10-1993 at 9-00 a.m.; (vi) Press clipping Exh.X of daily News dated 8-2-1994 reporting disqualification of Shad Muhammad Khan respondent for defection; (vii) Evidence of Habibullah Farooqi, Director News P.T.V.; Islamabad who had produced video recording Exh.P.6/1 of Khabarnama televised on 21st February, 1994 at 9-00 a.m. (viii) photo copy Exh.P6 of manifest of PIA Flight No,PK 0441 dated 23-2-1994 from Islamabad to Peshawar wherein the respondents' names have been recorded to have travelled alongwith Mr. Aftab Ahmad Khan Sherpao and other Opposition M.PAs. (xi) Evidence of Raja Muhammad Younas, Assistant Manager (Legal Services) P.IA., Rawalpindi, who produced a photo copy Exh.P.8/1 of manifest of Flight No,PK-442 dated 23-2-1994 from Peshawar to Islamabad wherein the respondents are recorded to have travelled alongwith the Opposition Members; (xii) Evidence of Abdul Hameed Khan Khattak, Secretary Provincial Assembly N.-W.F.P. Who produced video cassette Exh.P.9/1 containing proceedings of Session of the Provincial Assembly N.-W.F.P., audio cassettes Exh.P.9/2 and Exh.P.9/3 and transcript Exh.P.9/4 of the aforesaid proceedings of the Assembly held on 23-2-1994; (xiii) Press clippings from daily News, daily Nawa-e-Waqt (three in numbers), daily Nation (two in numbers) dated 8-2-1994, another of daily News, Nawa-e-Waqt dated 17-2-1994 and `Khabrain' dated 21-4-1994; daily `Mashriq' dated 11-2-1994, daily 'News' dated 6-2-1994, 8-2- 1994, 11-2-1994, 12-2;1994; daily 'Frontier Post' dated 5-2-1994, 8-2-1994, 12-2-1994, 13-2-1994 (four in numbers), another one which is not legible then dated 21-2-1994, 22-2-1994, 8-2-1994, a Cartoon published in daily 'Nation' and its Editorial dated 6-2-1994; another one which is undated, then dated 7-2-1994 (two in numbers) dated 8-2-1994 (two in numbers) one news analysis and an Editorial dated 9-2-1994, again dated 11-2-1994, 16-2-1994, 23-2-1994, 4-2-1994, 5-2-1994, 6-2-1994 (three in numbers) 10-2-1994; daily Khabrain dated 26-3-1994, daily 'Republic' dated 26-2-1994; daily News dated 22-2-1994; daily 'Frontier Post' dated 21-2-1994; daily 'Pakistan' dated 22-2-1994 and photograph showing a 'Iota' hung against the name plate of Syed Akhtar Hussain Shah respondent.
8. The respondents have also filed their affidavits Exh.R/1 and Exh.R/2. They have also filed a photo copy of resignation Exh.R.1/2 tendered to the Governor N.-W.F.P. By Syed Akhtar Hussain Shah from the Cabinet. They have annexed with their written statements Press clippings from daily 'News' (two in numbers); 'Frontier Post' (two in numbers) all dated 7-2-1994; daily Mashriq dated 9-2-1994; 'Frontier Post' dated 6-2-1994, 13-2-1994 and 23-2-1994; daily 'Muslim' dated 7-2-1994; daily 'News' dated 20-2-1994 and 23-2-1994.
9. My findings issue-wise are as under:--- Issues Nos.5 and 6.. Mian Saqib Nisar, appearing on behalf of the petitioner, addressed us on the factual aspect of these two inter-related issues. According to him, lengthy pleadings of the references revolved around seven points to establish that the two respondents/MPAs. Had been guilty of floor-crossing and supported the Opposition instead of their own party. The major points raised by Mian Saqib Nisar to show the two respondents to have rendered themselves for disqualification are as follows:-
(a) That by not participating in the 9th and 12th February, 1994, Parliamentary Party meetings of the Pakistan Muslim League (N) held at the residence of Anwar Kamal.
(b) That by not contacting their party leadership from 1st to 23rd February, 1994 and staying out of Peshawar and they themselves admitted that they had not contacted their party leaders during this period.
(c) That despite regular and consistent reporting in the national Press about the defection of the respondents, they did not refute any of these reports.
(d) That the respondents did not render any help to their party during these days.
(e) That even at the critical stages, the respondents did not approach their leadership.
(f) That non-participation of the respondents in the session on 16th February, 1994 of the N.-W.F.P.
Provincial Assembly reflected their conduct.
(g) That the respondents physically participated in the Parliamentary Party meeting of the Opposition presided over by the Opposition Leader Mr. Aftab Ahmad Khan Sherpao and it was relayed on national hookup and was reported in the national Press. In this context he placed implicit reliance on the proceedings Exh.P4/2, Exh.P4/3 and Exh.P4/4 as well as the statements of P.Ws. Anwar Kamal Khan, Tariq Swati, Sardar Mehtab Ahmad Khan Abbasi, M.PAs. And that of Sahibzada Pir Sabir Shah, petitioner. He further contended that it was crystal clear from the conduct of the respondents that they changed loyalties after 8th February, 1994, In this respect, he cited tanscript Exh.P.9/4 as well as various Press clippings.
10. Mr. Khalid Anwar, the learned senior counsel representing the petitioner addressed us on the legal aspect of these two issues. While conceding that the two terms 'defection' and 'withdrawal' occurring in section 8-B(2) of the Act have not been defamed he relied on Dictionary meaning of 'defect' and 'defection' as `desertion' a failure', `a falling away. From duty', 'revolt'.
' He quoted the meanings of 'withdrawal' as 'pull aside or back', 'take away', `remove', 'retract' and 'withdrawal' as an act of withdrawing! He then attempted to synchronise the act of defection or withdrawal with 'floor-crossing' and 'horse-trading' which have also not been defmed. But he borrowed their definition from the precedent Khalid Malik v. Federation of Pakistan PLD 1991 Kar. 1 wherein It has been understood in common parlance as 'winning of the support of members of Legislative Assembly belonging to opposite camps by inducement and corrupt means'. In order to highlight the vices of defection or withdrawal, Mr. Khalid Anwar referred to well known case of Khawaja Ahmad Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646 which have been noticed by Shafiur Rahman, J., as his Lordship then was, as under:--- "In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re-election. This will make him honourable politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In this normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the worldly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State. The normative moorings of the Constitution prescribe that "sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust and the State is enjoined to 'exercise its powers and authority through the chosen representatives of the people.' An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He cannot on the mandated Constitutional prescription participate in the exercise of State power and authority. Even by purely secular standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but 'mockery of the democratic Constitutional process."
' He also sought reliance on the following observations of Rustam S. Sidhwa, J., as his Lordship then was, in Khawaja Ahmad Tariq Rahim's case: "A party candidate is restricted to his party's programmer. But programmers and policies keep changing with grouping. Thus, the independent member may not seriously face a charge of defection if he were to ally himself with a party, but the member coming on a party ticket would not assuredly find himself in breach of trust with his voters. And whilst all forms of defection must be abhorred as violate of the Islamic spirit that binds a man to his word, such transgression on the part of a legislator must be all the more looked down upon as a serious breach of the authority reposed in him by Allah to represent his constituency on the basis of the sacred trust reposed by them in him. By defection he basically violates the very spirit of the teachings and requirements of Islam, under which he is ordained to act, and such an act can only be treated as a negation of the very spirit of the Constitution, which he is bound to preserve and protect. But one thing is certain, that when defection is used by a legislator to bargain for something outside his pure moral desire to change loyalty for another political party, 'trading' sets in, and when he dictates onerous terms as a consideration for his defection, such as a heavy price, a high office or some handsome reward, it becomes 'horse-trading' or 'conscience vending', a highly pernicious, immoral and unethical act, which for the same reasons must be openly condemned."
' Reliance in this context was further made on the following excerpt from speech of Khan Liaqat Ali Khan, the first Prime Minister of Pakistan, made in the Constituent Assembly on 'Objectives Resolution':--- "Therefore, Sir, you would notice that the Preamble of the Resolution deals with a frank and unequivocal recognition of the fact that all authority must be subservient to God. It is quite true that this is in direct contradiction to the Machiavellian ideas regarding a polity where spiritual and ethical values should play no part in the governance of the people and, therefore, it is also perhaps a little out of fashion to remind ourselves of the fact that the state should be an instrument of beneficence and not of evil. But we, the people of Pakistan, have the courage to believe firmly that all authority should be exercised in accordance with the standards laid down by Islam so that it may not be misused. All authority a a sacred trust, entrusted to us by God for the purpose of being exercised in the service of man so that it does not become an agency for tyranny or selfishness. I would, however, point out that this is not a resuscitation of the dead theory of divine right of kings or rules, because, in accordance with the spirit of Islam, the Preamble fully recognizes the truth that "authority has been delegated to the people, and to none else, and that it is for the people to decide who will exercise that authority.
' Lastly, Mr. Khalid Anwar borrowed the following paragraph from the speech of Mr. Abdul Hafeez Pirzada, the then Federal Law Minister, on the occasion of moving the Bill of the Constitution of Islamic Republic of Pakistan, 1973:--- "We must provide a system which would discourage opportunism, which would discourage adventurism in politics and particularly in this august House. Therefore, what was his proposal? His proposal was independence or independent. They are not bound by any party or any party mandate or any party programme, they have got their mandate on their own programme which we don't know, but if a Member of the National Assembly is elected on the strength of a party ticket he may be free to exercise his vote as he likes in ordinary matter, but in essential matters, in fundamental matters which affect the functioning of the Government, among them being like the vote of no confidence against the leadership of his own-party, if a member of the Assembly belonging to a political party defies the whip of the partywhip of the party means the majority decision within the party and on a vote of no-confidence or on some other very substantial issue wants to vote against his own Government and against his own party leadership, then he is under a moral obligation to quit his seat, go and seek a by-election, the motion of No-Confidence shall not be voted upon for a period of twenty-one days,"
' He argued that litmus test to prove whether the defection had taken Place is not just to see whether the two respondents had voted against the interest of their party but that they had abstained at a time when their party needed their support. He reiterated that at least the seven instances of inferential nature pressed into service by Mian Saqib Nisar, Advocate, in para.9 ante during the whole exercise of no-trust motion against the petitioner proved beyond reasonable doubt that they had crossed the floor.
11. As to the nature of evidence warranting disqualification of the respondents, Mr. Khalid Anwar invoked the provision of Article 2(4) of Qanun-e-Shahadat, 1984 which reads as under:--- "(4) A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exits."
' According to the learned counsel the circumstantial evidence brought on the file and highlighted in para. 9 ante showed unequivocally that it was a simple case for any prudent man to adjudge as to whether the defection had taken place or not. The learned counsel emphasised that no prudent man in this World after watching the case can say that defection had not taken place.
12. As against this, Syed Sharif-ud-Din Pirzada, learned counsel for the respondents, upon my query submitted that the proceedings before us were of quasi-criminal nature and, therefore, the circumstantial evidence of inferential nature was not sufficient to disqualify the respondents from the elected offices. He further pointed out that there being no direct evidence of defection against the respondents, the circumstantial evidence must be such that it could be of sufficiently qualitative so as to infer nothing but the defection. The learned senior counsel for the respondents had drawn our attention to the evidence of the two respondents on affidavits and which has also been conceded in part in affidavits sworn in by P.Ws. 1 to 5 that Shad Muhammad Khan respondent had expressed his grievance against the arrogance of the Speaker in general and providing him a Car of dilapidated condition. The expression of genuine grievance by a member in the meetings of Parliamentary Party was not an act of defection. He further urged that the expression of grievances by Shad Muhammad Khan were extended to demand for money without any foundation with a view to bringing the respondent within the mischief of defection or withdrawal under section 8-B of the Act. The learned counsel submitted that the two respondents had furnished sufficient justification for their absence from 5-2-1994 in the case of Shad Muhammad Khan respondent and from 11-2-1994 in the case of Syed Akhtar Hussain Shah respondent which could not be shattered even by the searching and lengthy cross-examination to which the two respondents were subjected. "Nonetheless", the learned counsel argued that" in the case-law defection has been distinguished for the purpose of dissolution and for that of disqualification." According to Mr. Pirzada, the dictum on defection in the case of Khawaja Ahmad Tariq Rahim's case cited earlier was only relevant for the purposes of dissolution. Reference was made to the observations of Shafiur Rehman, J., in Federation of Pakistan v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC
723. Relevant excerpt from paragraph 32 of report at page 749 reads as under:--- "Defection of an elected representative or a group of them should not have been confused with coalition of political parties or alliances of such parties for formation of Government. Similarly, the question. "provision technically it amounted to defection or whether a particular provision of the Political Parties Act was violative of the Fundamental Rights or these matters were sub judice, had nothing to do with the exercise of the Constitutional power of dissolving the assembly on the ground that by such defection it had lost its representative character. The elected representatives had at all times no other capacity except to represent their electorate. This ground, as pointed out in the case of Khawaja Ahmad Tariq Rahim C.P.L.A. No,628 of 1990 (PLD 1992 SC 646) was by itself sufficient to warrant the dissolution."
' Syed Sharifuddin Pirzada referred to "Law Relating, to Electoral Disqualification by BA. Masodkar, to stress that even the addition of Tenth Schedule in the Indian Constitution was subjected to searching criticism in the following paragraph at page 39:--- " is bound in public interest to safeguard the interest of the generals public, notwithstanding the political pressures or the view of his party to be otherwise. This freedom would include the freedom of unimpeded expression. Exercise of vote or abstaining from vote is the fundamental form of it.
There is every danger in the scheme that it will affect the individual political free- initiative, individual free choice and individual will which are so essential and so fundamental to any democratic structure of the Government yielding to group or party measures. The freedom of expression is not limited to making a speech. It includes also freedom of silence as well as the freedom to act according to one's best judgment. Similarly, the freedom to form association includes walking out of that association and forming a new group or new association having taken objectives from the earlier association. The dissent is the soul of democracy, and, basic as it is, it as a principle abhors the stifling of the dissenting voice. The democracy is sustained only by free exchange of ideas notwithstanding the rule by majority. It is not always the principle of unanimity amongst the group or party. What the Tenth Schedule appears to now contemplate is the rule of unanimity in place of rule of majority and choice-vote of group or party instead of individual initiation, freedom and vote. This appears to run counter to democracy's goal, for any legislator acting contrary to the mandate of the party or giving it up under the Tenth Schedule faces the consequence of vacating his seat and losing the statutory right gained by reason of his election, either to the Parliament or to the State Legislature. Conceptual rule of democracy having individual representation appears to conflict with the Tenth Schedule."
' At the same page the quotation of Sir Winston Churchill by the author was referred which reads as under:--- "What is the use of sending members of Parliament to say popular things of the moment, and saying things merely to give satisfaction to the Government whips and by cheering loudly every Ministerial platitude? How could Parliament survive if the members stamped out `every independent judgment'?"
' Again the criticism of NA. Palkhivala at page 68 in "Our Constitution" was brought to a notice. The relevant paragraph reads as under:--- "No greater insult can be imagined to members of Parliament and the State legislatures than to tell them that once they become members of a political party, apart from any question of the party Constitution and any disciplinary action the party may choose to take, the Constitution of India itself expects them to have no right to form judgment and no liberty to think for themselves, but they must become soulless and conscienceless entities who would be driven by their political party in whichever direction the party chooses to push them. Even to introduce such a Bill in Parliament is itself a breach of the privilege of the House, since it is a serious affront to the intelligence and integrity of the members."
13. There is no doubt that if a person is elected on a party ticket but he sells his political support for money or for promise of ministership or public office particularly at the crucial stage of vote of `no- confidence', then that member would be certainly.Guilty of defection. The voluminous case-law cited by the learned counsel for the petitioner would not be of much assistance to determine whether in the given circumstances the respondents have defected to the opposite camp? The first and foremost question is the nature of evidence required for proof of such defection which would in turn depend upon nature of the liability. In the light of the guideline provided by the august Supreme Court in Humayun Saifullah's case issues have been framed by us.But that by itself would not turn the proceedings into purely civil nature wherein the disputes are decided on the preponderance of evidence. In this context, I would subscribe to the view expressed by Syed Sharifuddin Pirzada at the Bar that the proceedings under section 8-B of the Act are of quasi- criminal .Nature. If it be so, then every elected representative would be deemed to have not defected unless proved to the hilt that he had in fact defected. In this context, I can do no better than reproduce hereunder the dictum of Manzoor Hussain Sial, J., as his Lordship then was, in Muhammad Tariq Chaudhry v, Masroor Ahsan and others PLD 1991 Lah. 200 on the type of evidence to be adduced in proof of disqualification within the meanings of Article 63(I)(h) of the Constitution.
"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 observe 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 D person against whom such finding is sought. In Haji Muhammad Tariq v. Muhammad Naveed-uz-Zafar PLD 1984 Lah. 502(DB), this Court set aside the order of the Election Tribunal disqualifying a returned candidate on conviction by Martial Law Authoritien, assuming him to be terrorist and involved in subversive activities, for want of positive evidence of unquestionable reliability."
14. At page 216 of the aforesaid report the Press clippings and news reports were discarded in view of the law laid down by the Supreme Court in Raja Muhammad Afzal v. Altaf Hussain 1986 SCMR 1736 and it was held with authority that there was no scope for reliance on adverse newspapers reports. E and, therefore, respondent therein was not disqualified on that score.
' Again I respectfully subscribe to the view held by his Lordship Manzoor Hussain Sial, J., in case of Muhammad Tariq Chaudhry at page 216 that "it is well settled that allegations, howsoever grave, are allegations and cannot take the place of proof or be 'admitted in evidence to reflect the correctness of the facts alleged therein unless they are proved in accordance with law." It was perhaps on this account that the petitioner annexing the volumes of press clippings notwithstanding, did not proceed further to prove their contents.
' In the light of these guidelines, the circumstantial evidence required for disqualification on the charge of defection should be such that facts proved must be incompatible with the innocence of the elected representatives and incapable of explanation upon any other reasonable hypothesis than that of their guilt. Accordingly where the circumstances are not inconsistent with the innocence of the elected representatives they cannot be disqualified.
15. Having set the standard for the type of circumstantial evidence that would be required for disqualifying an elected representative on the charge of defection, let us now revert to all the categories of evidence that has been sought to 'be given credence.
' The Press clippings have already been discarded for reasons enumerated by me in para. 14 ante.
' Non-participation of the respondents in the meetings of 9th and 12th of February, 1994, has been alleged. The evidence of Anwar Kamal Khan and 3 other M.PAs. Including Sardar Ghulam Nabi, Secretary of the Parliamentary Party of Pakistan Muslim League (N) has been attacked as bogus.
These proceedings are recorded on the letter-head pad of Pakistan Muslim League (N) N.-W.F.P.
But it is astonishing that despite other Press clippings no Press report on these proceedings has been made available. These are reports which can be recorded as and when required. To my mind, these reports were prepared later on, for, had those been prepared in due course and genuinely, there would have been permanent record including earlier meetings. To my mind veracity of these proceedings is not above board. Be that as it may, the first dinner hosted by Mr. Anwar Kamal Khan which was also called as a meeting, upon the petitioner's own showing, it was duly attended by Mr. Shad Muhammad Khan respondent because it was there that he had expressed his grievances including the demand of money. The very hypothesis that Shad Muhammad Khan respondent had demanded money in the presence of all the M.P.As. Is too wild an allegation to appeal to reason.
16. Shad Muhammad Khan respondent was till last the Deputy Speaker of the Assembly while Syed Akhtar Hussain Shah respondent was Member of the Cabinet till 20-2-1994. Both of them had explained the grounds on account of which they could not attend the said meeting, if they were convened at all. Shad Muhammad Khan had expressed his grievances and having not been attended to, he would have been quite justified to have boycotted those meetings. In fact boycotting meeting of the Parliamentary Party by itself would not be enough of H a reason to charge the M.PA. For defection.
17. Refutation of the charges of defection appearing in the Press may be a lapse, but it is not that serious that it can lead to the only irresistible inference I of defection.
18: Syed Akhtar Hussain Shah respondent was aggrieved of the invitation of his arch rival Mian Wali-ur-Rehman in the public meeting held at Mansehra on 10-2-1994 which was addressed by the Chief of Pakistan Muslim League , (N). If he did not help the party high ups in the Province, it is understandable. similarly, as stated earlier, the non-participation of the respondents in the session on 16-2-1994 of the Assembly has been reasonably explained by them. Nonetheless, that would not per se reflect their conduct of defecting their party.
19. The respondents have maintained that they had participated in the Iftar Party hosted by their colleague Habibur Rehman Tanoli wherein if the Leader of the Opposition had participated, it was not indicative of desertion of one's party. In this part of the country particularly and elsewhere generally it is not unusual to fraternize socially even the M.PAs. Belonging to the Opposition. This circumstance was not such as to manifest their defection or withdrawal. The televising of this party on the national hook up was also not so significant that it could be a. Litmus test for desertion and could not be explained on any other hypothesis than that of defection or siding with the Opposition.
20. The manifests Exh.P.6 and Ex.P.8/1 indicating the travel by the respondents by PIA Flight to and fro Islamabad on 23-2-1994 in the company of the Opposition M.PAs. Was much played up by the petitioner. The respondents have met it by asserting that due to serious threats of violence to the M.PAs. Attending the Session of the Assembly, they had accepted the invitation of Zaffar Azam and Habibur Rehman Tanoli MPA to travel with them from Islamabad to Peshawar. During the Session what had ensued in the Assembly, declaring them as strangers the respondents were perhaps justified to have travelled with their friends belonging to the other parties than the Pakistan Peoples Party or even the Pakistan Peoples Party. In point of fact, upon the petitioner's own admission, the respondents had been expelled from the Pakistan Muslim League (N) respectively from 5-2-1994 and 23-2-1994. In consequence, travelling by the flights whereby the opposition had travelled to and fro Islamabad could not be taken as an act of defection. An expelled member could legitimately travel by a flight by which the other M.P.As. L belonging to opposition had travelled and it would not militate against the respondents.
21. The video cassette Exh.P.9/1, audio cassettes (four in numbers) Exh.P.9/2 and Exh.P.9/3 and the transcript Exh.P.9/4 of the proceedings of the Assembly Sessions held on 23-2-1994 are not worthy of reliance. In the first place, it was within the control of the majority party and Speaker to have got it prepared in the manner and mode that suited them. Queerly, the video film Exh.P.9/1 appears to be mutilated after 12-30 p.m. And is almost blank. The respondents, as stated earlier, had been expelled from their party much earlier than the Session and declared strangers in the House on 23- 2-1994.
22. For the foregoing reasons, I am clear in my mind that the petitioner has not been able to establish beyond any reasonable doubt that the respondents have defected from Pakistan Muslim League (N). This being so, the respondents have not become disqualified from being members of the Provincial Assembly of N.-W.F.P. Both the issues are answered in the negative.
Issue No,2. I find no material on the file to show as to the incompetence of the references. Similarly, there is nothing to suggest that the references in hand are in any way misconceived or not maintainable. The plea of mala fide is also far from proved. This issue is also answered in the negative.
Issues Nos.3 and 4.. No adverse inference can be drawn from the withdrawal of the decision by the Parliamentary Party or by the Speaker qua the defection of the respondents on 23-2-1994 in pursuance of the agreement of the parties in the Peshawar High Court. These issues are decided against the respondents. <u.issues> The ratio deducible from Humayun Saifullah's case PLD 1990 SC 599 appears to be that proper forum for determining the vires of section 8-B of the Act is either the High Court (per majority view) or the Supreme Court (per minority view). It can, therefore, be impliedly held that Election Commission would have no jurisdiction to determine the vires of section 8-B of the Act.
Even otherwise, a forum which is the creation of a special statute would not perhaps be competent to go into the vires thereof. Again the determination of the proposition whether the Act is repugnant to the Injunctions of Islam apparently does not fall within the domain of the Commission. Both issues are decided against the petitioner.</u.issues>
23. Before parting I would like to point out that Syed Iftikhar Hussain Gillani and Mian Saqib Nisar, learned counsel for the Speaker and petitioner invited our attention to the political development that had taken place in the N.-W.F.P. Assembly on 24-4-1994. When directed by me to file an application in writing, the learned counsel did not press it any further. In any case, the petitioner is at liberty to seek relief from a forum of competent jurisdiction.
24. As a sequel to my findings on Issues Nos.5 and 6 these references are accordingly dismissed. In the circumstances of the case however, the parties are left to bear their own costs.
(Sd.)
(Justice Muhammad Bashir Khan Jehangiri), Member Election Commission.
ANNO UNCED (Sd.)
(Justice Sh. Riaz Ahmed)
Member, Election Commission - I.