' In this election petition filed under the provisions of section 52, 62 and 67 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) petitioner has moved an application seeking to summon Mr. Muhammad Rafiuddin Hyder, Chartered Accountant of Avais Hyder Zaman as expert on Wealth Tax laws in order to establish that the respondent No,1 in his Nomination Form having declared certain assets and properties is guilty of perjury. Another ground urged in support of the application is that the value of assets as shown in his Nomination Form differs from the value of assets described in his written statement filed before this Tribunal.
2. A notice of the application was issued to respondent No,1 a returned candidate from PS-45 Sindh and notified as Member of the Provincial Assembly.
3. For the purpose of proper appreciation of the question involved in this petition it is necessary to reproduce relevant parts of amendments introduced by amendment Ordinance CXII of 1996 in the Act:-- "12(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany--
(i) .
(v) a declaration that he, his spouse or dependent children or dependent parents or a business concern mainly owned by the aforesaid have not made any default in payment of taxes for over six months;
(vi) a declaration that he, his spouse or dependent children or dependent parents or a business concern mainly owned by the aforesaid have not made default in payment of Government dues and utility expenses, including telephone, electricity, gas and water charges, for over six months; ' Section 99: Qualifications and disqualifications.--(1) A person shall not be qualified to be elected or chosen as a member of an Assembly unless--
(a) .
(b)
(f) he is sagacious, righteous, non-protligate, honest, Ameen and pays his debts and taxes specified in subsection (2) of section 12."
4. In view of aforesaid amendments in the Act it is contended on behalf of the contesting respondent that such amendments brought into law w,e,f, 5th December, 1996 stood repealed by reason of the aforesaid Ordinance being not placed before the Parliament before the expiration of four months from its promulgation. Argument proceeds on the assumption that with the repeal of amending law petitioner is no longer entitled to invoke the provision of disqualification clauses introduced in the existing law by reason of their abatement. Article 89 of the Constitution pertaining to the power of President to promulgate Ordinance and the repeal of Ordinance provides as under:-- "89. Power of President to promulgate Ordinances.--(1) The President may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of (Majlis-e-Shoora (Parliament) and shall be subject to like restrictions as the power of (Majlis-e- Shoora (Parliament) to make law, but every such Ordinance--
(a) shall be laid--
(i) before the National Assembly if it (contains provisions dealing with all or any of the matters specified in clause (2) of Article 73) and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution;
(ii) before both Houses if it (does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly, shall be deemed to be a Bill introduced in the National Assembly.
5. Next argument advanced on behalf of the respondent is that notwithstanding repeal of the law relating to newly-added disqualification in the matter of a candidate for election to a seat of Provincial Assembly proposed evidence cannot be lawfully adduced and examined or enquired into by this Tribunal for the reason that the default in payment of wealth tax if any falls within the exclusive jurisdiction of Wealth Tax Authorities.
6. Learned counsel for the petitioner, however, vehemently contended that as provided in Article 264(c) of the Constitution where a law is repealed or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution affect any right, privilege, obligation or liability acquired, accrued or incurred under the law and any such penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. Conversely submission of the learned counsel for the respondent is that by reason of clause (a) of the aforesaid Constitutional provision with the repeal of law by reason of it being not laid before the Parliament, any right, privilege, obligation or liability acquired, accrued or incurred shall completely disappear and such repeal shall not revive anything not in force or existing at the time at which the repeal takes effect.
7. In order to reinforce his contention and the main ground urged in this petition, learned counsel for the petitioner referred to certain events namely: filing of Nomination Form on 21-12-1996; holding of General Elections on 3-2-1997 and Official count of result of voting on 7-2-1997 which are material and relevant for the determination of the point under consideration. Learned counsel emphasised that even the present petition was filed before the Election Commission of Pakistan on 8-3-1997 when the amendment Ordinance was still operative and in the field. Main thrust of the learned counsel is on the significant circumstance that the aforesaid events leading to the filing of this petition took place during the subsistence of the law as amended, therefore a valid right to challenge the disqualification of a contesting candidate accrued to the petitioner whereas liability incurred by respondent No,1 remained unaffected notwithstanding the repeal of Ordinance w,e,f, 4- 4-1997. Learned counsel relied upon the following cases in support of his submission:--
(i) A.G. Electric Company v. Government of Pakistan (1994 CLC 420),
(ii) Government of Punjab v. Ziaullah Khan (1992 SCMR 602),
(iii) Muhammad Arif v. The State (1993 SCMR 1589).
8. On the other hand, learned counsel for respondent No,1 besides relying upon para. 12 of the judgment in Muhammad Arif's case (supra) referred to Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738) and Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66).
9. 1 have given a careful consideration to the submissions advanced at the bar. In the case cited at Serial No,(i) a Division Bench of this Court dealing with an amendment brought in Customs Act, 1969 expressed the view that all rights acquired/obligations accrued and liabilities incurred pursuant to section 25-B of the Customs Act and notifications or orders issued thereunder while Finance Ordinance II of 1988 occupied the field were and remained valid, since those would fall in the category of past and closed transactions; however any notification or order issued in terms of section 25-B, Customs Act, 1969 and in exercise of delegated powers under notification dated 30- 6-1988 beyond 25-10-1988 when section 25-B, Customs Act, 1969 stood repealed upon the deemed repeal of Finance Ordinance II of 1988 would be invalid in law, except in situations covered by Article 264(c) of Constitution.
10. In Government of Punjab v. Ziaullah Khan, the Hon'ble Supreme Court dealing with an amendment introduced in Special Courts for Speedy Trials Ordinance, 1987 held that where a law is repealed or deemed to have been repealed by, under or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution, affect the previous operation of the law or anything duly done or suffered under the law.
11. In Muhammad Arif's case view expressed in 1992 SCMR 602 was followed and reiterated while the case reported as Muhammad Naeem alias Naeema v. The State 1992 SCMR 1617) was distinguished.
12. No doubt, learned counsel for the respondent No,1 relied upon para. 12 of this judgment which expresses the view that there is a marked distinction between a temporary enactment and permanent enactment and that the rules of interpretation of statute of a temporary nature are different from those which are permanent, it may be difficult to subscribe the view in the circumstances of this petition that the amendment Ordinance in the case in hand was of temporary nature or that with the lapse of the enactment all rights acquired. And liabilities incurred would .Come to an end or that the proceedings initiated during the subsistence of the law as amended would abate with the expiry of the Ordinance.
13. In Pir Sabir Shah's case reported as PLD 1994 SC 738, Supreme Court was primarily concerned with the question of jurisdiction notwithstanding ouster clause contained in Political Parties (Amendment) Ordinance, 1993 with regard to disqualification on the ground of defection. The case does not directly deal with the effect and impact of repeal of law in terms of Article 264 of the Constitution. Observations in para. 45 of the judgment taking the view that this Ordinance was a temporary piece of legislation in my view cannot be c..Atended to the facts of the present case and the reliance on such observations is completely out of place.
14. In the last case, learned counsel relied upon para. Side lined as "LLL" appearing at page 212 of the report which is a minority view expressed by my lord Saeed-u-zzaman Siddiqui, J. And runs contrary to the majority view expressed by the Supreme Court in para. 34 of the judgment. In this paragraph majority view expressed by my lord Syed Sajjad Ali Shah C.J. Reads as under:-- "Contention was raised before us that section 8-B of the Political Parties Act after the lapse of last Ordinance No,XXX of 1993 amendment, made by way of substitution, would not automatically be revived as is contemplated under Article 89 read with Article 264(c) of the Constitution. In support of the proposition reliance is placed on the case of Ittefaq Foundry v. Federation of Pakistan (PLD 1990 Lahore 121). We are of the view that it would not he necessary to go into the question of effect of repeal in the light of the contention raised above for the reason that the main question which falls for consideration before this Court is to fmd out as to what was the intention of the Constitution-makers in providing forum of the Chief Election Commissioner as contemplated under Article 63(2) of the Constitution, which is to be considered as the only forum for the reason that no other forum is provided for hearing of appeal against the decision of the Chief Election Commissioner. Article 63(1)(p) envisages that disqualification under any law for the time being in force can be added to the disqualifications mentioned under Article 63(1) of the Constitution, but it is nowhere specifically said in Article 63 that for the purpose of determining the question of disqualification forum can be added or different forums can be provided against the forum of the Chief Election Commissioner, as contemplated under Article 63 of the Constitution. "
15. A somewhat identical question arose before a Full Bench of the High Court of Sindh in Shariat Petition No,5 of 1988 (Ali Muhammad Aziz v. State Bank of Pakistan and another) decided on 20th February, 1991 in which the majority view expressed by Saiduzzaman Siddiqui, C.J. With whom Saleem Akhtar, J. (as their lordships then were) concurred was that while repeal of the first Ordinance did not affect the competency of the petitions filed under it before its repeal the petitions filed under the second Ordinance were not maintainable as the second Ordinance was not a valid piece of legislation. In the earlier paragraphs of the judgment their Lordships held that the first Ordinance gave right to individual to file petition before the Shariat Bench of High Court to challenge the validity of any such law on the ground that it was opposed to Qur'an and Sunnah.
This right to file petition by individual was no doubt inchoate but when such right was exercised by filing the petition, the same could not be defeated by repeal of the law as it is sufficiently saved under Article 264 of the Constitution.
16. On a careful consideration of the contentions raised and a review of the earlier precedents, I am of the view that notwithstanding the repeal of amendment Ordinance by fiction of law liability incurred by the respondent remained intact and the election petition filed during the subsistence of valid law would remain unaffected by such repeal.
17. Identical view was taken by a Division Bench of this Court in Muhammad Bachal v. Deputy Rehabilitation Commissioner (PLD 1962 (W.P.) Karachi 889). It was held in this case that where a law is repealed by the Constitution, the repeal shall not affect any right or liability or privilege acquired, or accrued or affect any legal proceedings or remedy in respect of such right or privilege and such legal remedy or proceeding may be continued as if the law had not been repealed.
18. Having held above I proceed to examine the second contention advanced by learned counsel for the respondent. In fact, the fate, of the petition centres around the disqualification purportedly incurred by the respondent by reason of amendment in the Act being defaulter in payment of Government taxes. Now the contention that proposed evidence to determine actual amount of wealth tax evaded by the respondent and, thus, guilty of default falling within the exclusive domain of Wealth Tax Officer appointed under the fiscal laws cannot be entertained in election petition proceedings. It seems that such laws have been incorporated in the Election laws popularly known as legislation by incorporation. If it be so, I think the petitioner cannot be denied the right to adduce evidence of his choice in support of his case to establish the ground taken in the petition. I am, therefore, of the view that this ground may be left open for examination at the final decision of the petition and the proposed evidence cannot be shut down on this technical score alone.
19. For the aforesaid reasons, objection raised on behalf of the respondent is repelled and application for summons allowed.