AMIR-UL-MULK MENGAL, C.J.- This petition, filed by Sardar Fateh Ali Khan Umrani under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter, referred to as the "Constitution") is directed against the impugned judgment dated 9.3.1993 passed by leamed Chief Election Commissioner of Pakistan whereby the petitioner was disqualified to remain as Member of Provincial Assembly of Balochistan on the-ground of defection as contained under Article 63-A(l)
(a) of the Constitution, as such he ceased to be member of the Provincial Assembly Balochistan. It was further declared that seat from Constituency (PB-23 Nasirabad) had become vacant and as a consequence thereof bye-elections should be held.
2. Brief facts for filing of this petition are that petitioner contested elections held in February, 1997 and was returned as Member of Balochistan Provincial Assembly on the Ticket of Jamhuri Watan Party from PB-23 Nasirabad.
3. After the elections, three political parties namely Jamhuri Watan Party, Balochistan National Party and Jamiat-ul-Ulemai Islam (Fazal-ur-Rehman Group) in coalition formed Provincial Government.
4. The petitioner received a notice from the Chief Election Commissioner dated 26.2.1998 to appear before him on 3.3.1998 in connection with reference for disqualification made under Article 63-A of the Constitution by Speaker of the Balochistan Provincial Assembly. The petitioner along with his counsel appeared and the following order was passed:- "The leamed Counsel for Respondent states that respondent was neither heard by the party nor by it's head. He had not been served any notice either from the party or Speaker Provincial Assembly Balochistan. Therefore without hearing the respondent, no adverse proceedings can be taken against him. Notice to the Speaker Provincial Assembly Balochistan and Secretary General of Jamhoori Watan Party Adjourned to 7.3.1998 at 10.00 AM."
The petitioner filed his written statement, inter alia taking following legal objections:- "(i) No action could be taken under Article 63-A of Constitution as the same stood suspended by Honourable Supreme Court vide its Order dated 29.10.1997;
(ii) No defection as defined by law has taken place;
(iii) Alleged decision by the party is no decision in the eye of law;
(iv) Article 63-A is ultra-vires of Constitution as being repugnant to fundamental rights particularly those which are enshrined in Articles 17, 19 and 25.".
It is the case of the petitioner that neither he received any notice from the party chief nor from the Speaker; and further that he was not heard by either of the two. It was specifically mentioned that petitioner had neither left the party nor committed any breach of party discipline.
5. It is pertinent to mention here that Worthy Speaker of Balochistan Provincial Assembly made Reference for disqualification of the petitioner to the Chief Election Commission in the following circumstances
(i) It was reported in daily Jang Quetta dated 21.12.1997 that petitioner along with 35 other elders of Umrani tribe had left JWP and joined Balochistan National Party.
(ii) Respondent No. 4 (Secretary General JWP) issued a notice dated 17.1.1998, on authority of respondent No. 3, to petitioner at his Quetta. Address alleging defection from JWP and joining BNP as reported in press and calling upon petitioner to explain why action fr disqualification should not be taken. Copy of the notice was endorsed to Speaker. Notice does not indicate, whether, It was sent by hand, by post or by Courier Service. However, it purports to bear name of one Ghulam Abbas Umrani driver and also bears some signature.
(iii) On the assumption, that notice was served on the petitioner, Disciplinary Committee was constituted which deliberated the matter on 3.2.1998 and came to conclusion that petitioner has violated party discipline. President of JWP vide letter dated 23.2.1998, communicated the decision of Disciplinary Committee to the Speaker for making reference to Chief Election Commissioner for unseating petitioner and for bye-elections in the Constituency.
(iv) By his D.O. Dated 24.2.1998 Honourable Speaker made a reference to respondent No. 1 for further action under Clause 3 of Article 63-A of the Constitution."
The leamed Chief Election Commissioner passed the impugned judgment holding that the petitioner has become disqualified on the ground of defection as contemplated under Article 63-A (l)(a) of the Constitution; and thus had ceased to be member of Provincial Assembly; further directing bye-elections in the Constituency (PB-23 Nasirabad).
6. Feeling aggrieved of the judgment so passed by the Hon'ble Chief Election Commissioner, the petitioner had filed this Constitutional Petition.
7. Since important constitutional points were involved which required to be interpreted, therefore, the Court issued notice under Order 27-A CPC to the Attorney General of Pakistan.
8. The matter was admitted for regular hearing and it was thought appropriate and proper to constitute a larger Bench.
9. Lt is pertinent to mention here that in the present Petition Article 63-A of the Constitution has also been challenged and this matter was already sub judice before the Hon'ble Supreme Court. The Hon'ble Supreme Court, in the said petitions had issued a stay order, operative portion of which is reproduced for ready reference as under:- "In such circumstances we deem it fit and proper to grant interim relief in the terms that no adverse action shall be allowed to be taken against any member of Parliament in pursuance of newly added Article 63-A which is impugned in these petitions. This order shall remain operative till the final disposal of the petitions".
During hearing, the counsel for the parties brought to our notice that the Hon'ble Supreme Court has concluded the arguments and had reserved the judgment. In such circumstances the matter was adjourned so that final determination of the issue as regards Article 63-A of the Constitution is settled by the Hon'ble Supreme Court.
10. The Hon'ble Supreme Court in Constitutional Petitions Nos. 24 and 25 of 1997 delivered judgment.
The operative portion of the order of the Court would be beneficial for the disposal of present petition as such the same is reproduced as under:- "By majority of 6 to 1 it is held that Article 63-A of the Constitution is intra vires but 4 to 2 subject to the following clarifications
(i) That paragraph (a) is to be read in conjunction with paragraphs (b) and (c) to Explanation to clause (1) of Article 63-A of the Constitution. It Must, therefore, follow as a corollary that a member of a House can be disqualified for a breach of party discipline in terms of above paragraph (a) when the alleged breach relates to the matters covered by aforesaid paragraphs (b) and (c) to the above Explanation to clause (1) of the aforementioned Article and that the breach complained of occurred within the House.
(ii) That the above paragraph (a) to Explanation to clause (1) of Article 63- A is to be construed in such a way that it should preserve the right of freedom of speech of a member in the House subject to reasonable restrictions as are envisaged in Article 66 read with Article 19 of the Constitution.
Whereas by minority view paragraph (a) in the Explanation to clause (1) of Article 63-A and clause
(6) in the said Article of the Constitution are violative of the fundamental rights and are to be treated as void and unenforceable"
Heard M/s. Muhammad Aslam Chishti and S.A.M. Quadri, Advocates for petitioner, Mr. Amanullah Kanrani for respondent No. 2 Speaker Balochistan Provincial Assembly, Mr. Raja M. Afsar, Advocate for President Jamhuri Watan Party and Mr. M. Zafar, for respondent No. 4 General Secretary, Jamhuri Watan Party. Besides on behalf of Attorney General, leamed Deputy Attorney General Syed Ayaz Zahoor was heard.
11. Mr. Muhammad Aslam Chishti assailed the judgment passed by respondent No. 1 Chief Election Commissioner Pakistan mainly on the following grounds:-
(i) That the impugned action under Clause (I) Sub-Clause (a) of Article 63-A of Constitution could not have been taken because there was no allegation of violation of party constitution, code of conduct or declared policies, as such order is without jurisdiction.
(ii) That no notice as required under Article 63-A was served on the petitioner either by respondent No. 4 or by respondent No. 3, therefore, reference by Speaker to Chief Election Commissioner dated 24.2.1998 was without lawful authority.
(iii) That it was further urged before us that since Head of the Party in terms of Clause (1) read with Clause (2), of Article 63-A had himself made no determination or declaration, rather referred the matter for determination to so-called disciplinary Committee, therefore, Reference by Speaker was devoid of any lawful authority.
(iv) That as for as defection is concerned, the same is based on press reports, authenticity of which was seriously questioned, therefore, there was no material before the Chief Election Commissioner to have arrived at the conclusion that the petitioner has defected the party.
(v) That the. Impugned order was highly unwarranted because the matter as regards vires of Article 63-A of the Constitution was sub judice before the Supreme Court.
(vi) That all the ostensible proceedings have been conducted behind the back of the petitioner because he has no left the Party as alleged in the Reference.
(vii) That operation of Article 63-A of the Constitution had since been stayed by the Hon'ble Supreme Court, therefore, no member could be disqualified under the said Article during suspension of the Article 63- A.
(viii) That according to Article 63-A, a decision shall have to be taken by the Head of the Political Party and not by any disciplinary committee, therefore, it tantamount to deeming defection and not decoction simpliciter, as contained in Article 63-A(l).
(x) That the Hon'ble Supreme Court has recently interpreted Article 63-A of the Constitution holding that action could be taken only when a member votes against party discipline or party policy in the House.
12. While on the other hand Mr. Zafar, Raja M. Afsar and Mr. Amanullah Kanrani argued as under:-
(i) That petition is not maintainable because the action taken by Head of Jamhuri Watan Party, seeking Reference by Speaker to Chief Election Commissioner was neither coram non-judice, nor without jurisdiction nor mala fide; these- are the three conditions precedents for maintainability of the present petition.
(ii) That a proper notice has been served through driver of the petitioner to him, therefore, subsequent actions can not be challenged on that count.
(iii) That the petitioner has not come with clean hands before the Court. His conduct throughout was not above board. He had changed his stance by making contradictory statements, therefore, discretion cannot be exercised in favour of the petitioner as it negates the principle that, he who seeks equity must do equity.
(iv) That an alternate remedy by way of filing appeal to the party Chief as provided under Art;de 63-A of the Constitution was available; but not availed.
(v) that the petitioner has never contradicted his defection through press which amounts to implied admission of the press statement or press conference where the petitioner defected JWP and joined BNP.
(vi) That opportunity of hearing was afforded before the Chief Election Commissioner which is a constitutional institution where the sole ground urged by the petitioner was as regards non-service of notice. He, therefore, can not claim that principles of natural justice have been violated;
(vii) That satisfaction of Chief Election Commissioner on basis of material placed before him can not be substituted by the High Court even if a different view could possibly be taken.
(viii) That there are concurrent findings of fact by the Party as well as by Chief Election Commissioner. The same can not be rendered ineffective by the High Court and that this Court should not follow the stay order granted by the Supreme Court Comprising of a Bench with less members and should follow PLD 1989 S.C. 61 where seven Hon'ble Judges held that no interim relief can be granted against a statute if challenged. Another argument in this regard was that the stay order was as regards members of the 'Parliament' and the Provincial Assembly did not fall within the-ambit of said order and Article 127 of the Constitution can not be stretched to cover the case of the petitioner who was a member of the Provincial Assembly.
13. The jurisdiction of this Court has since been challenged, therefore, we would proceed to attend this objection first. In this regard our attention was drawn to Clause (6) of Article 63-A of the Constitution which reads as under:- "63-A Disqualification on ground of defection, etc.- (1)
Explanation.-......................................
(2) .....................................................
(3)......................................................
(4)...................................................
(5) .................................................
(6) Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to any action under this Article".
This Article has been recently interpreted by the Honourable Supreme Court and it was held as under in C.P. Nos. 24 and 25 of 1997:- "It will suffice to observe that it has been consistently held by this Court that the question, as to whether a superior Court has jurisdiction .In a particular matter or not, is to be decided by the Court itself. We provision of whatsoever amplitude can take away the jurisdiction of the superior Courts to examine the above question as laid down inter alia by the dictum in the case of State v. Zia-ur- Rehman (supra). Furthermore the simpliciter factum that a particular provision of the Constitution contains a non-obstante clause will not itself be sufficient to deny the- jurisdiction of the superior Courts if the impugned action/order is without jurisdiction, coram non-judice or mala fide".
The Honourable Supreme Court has concluded that the Court has jurisdiction, if action taken isceram-non-judice, without jurisdiction or mala fide. By dint of this clause the jurisdiction of High Court has not been completely ousted. However, the High Court has to analyse the action taken, which if found without jurisdiction or coram-non-judice or mala fide, can be interfered with by the Court.
14. Mr. Muhammad Aslam Chishti, leamed counsel for the petitioner contended that competent authority as envisaged under Article 63-A is the Head of the Political Party or such other person as may be authorised, in this behalf who can issue notice to a member. It is, therefore, to be seen, whether any notice has been issued by the Head of the Party to the petitioner. We have perused the notice attached with the petition which is dated 21.12.1997 (ANNEXURE 'E'). This notice has been issued by the Secretary General JWP. It is also mentioned that he has been authorised by the Head of the JWP Nawab Muhammad Akbar Khan Bugti under sub-article (1) of Article 63-A of the Constitution. Although no authority letter has been placed before us that Nawab Muhammad Akbar Khan Bugti has - indeed authorised the Secretary General of JWP, but on the basis of such notice, proceedings of the Disciplinary Committee have been endorsed by the President of the Party himself who made the Reference with his signatures to the Seker, which clearly shows that such authority had been given by the Head of the JWP to Secretary General of the said party. We have perused the Reference made by the President of JWP Nawab Muhammad Akbar Khan Bugti which is dated 23.2.1998. Therefore, the forum was not coram-non-judice. However, Mr. Muhammad Aslam Chishti contended that stich notice has never been served upon the petitioner. Perusal of the notice shows that this notice was received by one Ghulam Abbas Umrani driver, for and on behalf of Fateh Ali Khan, the petitioner. The petitioner flatly refused to have received any such notice even before the Chief Election Commissioner. The Chief Election Commissioner has attended to this aspect, and observed, "it was conceded that Ghulam Abbas is the driver of respondent, though it was contended that it was not a proper service". Thereafter, second show- cause notice was issued to the petitioner to appear before the Disciplinary Committee on 3.2.1998 and the endorsement states that Ghulam Abbas refused to take the notice under the instructions of Sardar Fateh Ali Khan. The third notice was also refused by Ghulam Abbas. After giving this back-ground in para 10 the learned Chief Election Commissioner observed that no affidavit of Ghulam Abbas has been filed repudiating the claim of the party's Secretary General about the service of notice. There was also no counter-affidavit disputing the statement made by petitioner in the Newspapers and no contradiction refuting the alleged Press Conference by the petitioner and over and above the leamed Chief Election Commissioner was persuaded that an offer was made by the Secretary General to the petitioner that he should accept the notice before the Chief Election Commissioner, but the petitioner denied, therefore, it was held that notice has been duly served. However, Ghulam Abbas has filed an affidavit before us to the effect that he is employed as driver in B and R Department. He never received from JWP any notice to the served upon Sardar Fateh Ali Umrani. So much so that he did not know about the notice. As against this affidavit there is affidavit of Muhammad Sale son of Muhammad Karim, the office boy of JWP to the effect that he was given a communication on 28.1 1998 by Amanullah Kanrani, Advocate (from JWP) for delivery to Sardar Fateh Ali Khan Umrani MPA. He took this Dak to the house of Sardar Fateh Ali Umrani situated in Rani Bagh Sariab Road, Quetta. A servant came out from the house and informed him that under instructions of Sardar Sahib he Will not accept any paper brought to the house by any one. He made such endorsement on the dak. Again a communication dated 4.2.1998 signed by Khuda-i-Noor General Secretary was given to him for delivery to Sardar Fateh Ali Khan Umrani at his residence at Quetta. Again the servant came out saying that there are instructions from Sardar Sahib not to accept any communication from any one. He made endorsement to the said effect on the notice. This was repeated for third time on 11.2.1998 where the servant disclosed his name as Ghulam Abbas and he refused to receive the letter. It is worth mentioning to point out here that in constitutional jurisdiction the Court can not sit as a Court of appeal and scrutinize the material in detail in order to come to an exact conclusion. What is to be seen is whether service has been effected or not. Although mode of service of. Notice upon defendant is described in detail in CPC but in the instant case the notice was personally given to office boy of JWP which was taken to the residence of petitioner at Rani Bagh Quetta. There is no material that at the relevant date Fateh Ali Umrani was not at his residence at Quetta. Nothing has been brought on record to show that besides the petitioner any of his family members was also present in his house. Of course, Ghulam Abbas in his affidavit stated that he is driver in B and R Department but he has not specifically disclosed that simultaneously he is not working with the petitioner. Similarly the petitioner has not denied that Ghulam Abbas Umrani is not known to him or does not reside in his house. However, he has given oath to the effect that Ghulam Abbas is not his driver and that he is not authorised in any manner to receive notice on his behalf. "Notice" in strict sense means making something known to a person of which he was or might be ignorant. It is either statutory, actual or constructive. Of course this notice could be affixed on the main gate by Muhammad Sale as envisaged under CPC but ordinarily if notice is taken to a house and it is denied to be received it is deemed to be served upon the person against whom the same. Had been issued. Furthermore the leamed Chief Election Commissioner observed that the Secretary General of JWP Mr. Khuda-i-Noor made an offer to serve notice on the respondent in the Court so that he .Might not be able to deny that he was not served with any notice. But present petitioner in presence of Chief. Election Commissioner refused to accept the same. Thus we are of the considered view that the petitioner had the knowledge of proposed action to be taken against him. He is now fighting his case on mere technicalities. In this background it can not be held that the petitioner had no knowledge or was totally ignorant of the intended action to be taken against him. The principle of natural justice would be violated only when an action is taken against a person in absentia and without his knowledge, lt might be argued that such notice could be sent through registered post upon the residence of petitioner which could be sufficient proof but it is not a rule. The offer of the Secretary General who has been authorised by the Head of the Party to issue notice to the petitioner for intended action to be taken against him should have been accepted by the petitioner in which, case the earlier proceedings would naturally come to an end and he could then give his explanation before the Disciplinary Committee or before the Head of the Political party. Thus the petitioner had the knowledge of intended action against him. As stated by him on oath before us that he had not defected the party nor by his conduct/he violated any party policy or party discipline, could be conveniently taken before the Disciplinary Committee or before the Head of the Party. However, the petitioner insisted that since no notice has been served upon him, therefore, the Chief Election Commissioner should not take any action on the Reference. In such circumstances the learned Chief Election Commissioner came to the conclusion that proper service has been effected upon the petitioner and we see no reason to come to a different conclusion. While concluding we may observe that principles of natural justice are neither inflexible nor immutable. To put it in more appropriate words as mentioned in Rave S. Naik's case, "they can not be put in a legal straitjacket". The principle of natural justice thus has to be seen in the context and facts of each case and in the instant tp our considered view sufficient opportunity was given to the petitioner both by the Party as well as by the Chief Election Commissioner but he did not opt to contest.
15. The next pertinent question is whether the petitioner has defected Jamhuri Watan Party. The ordinary meaning of 'defect' is lack of something essential to completeness; short-coming, failing.
In the Concise Oxford Dictionary, besides the above meanings it also connects deserted esp. To another country, falling away from allegiance to leader, party or religion. Similarly in the Chambers Twentieth Country Dictionary the word 'defect1 inter alia means to desert one's country, a cause, transferring one's allegiance (to another). As such if a member deserts his party he is said to have defected the party. Article 63-A of the Constitution envisages two concept of defection.. Article 63- A(l) contains a defection simpliciter, whereas Explanation to 63-A(l) prescribes 'deeming defection' as are covered under clause (a), (b) and (c), According to the judgment of Hon'ble Supreme Court, as recently pronounced in C.P. No. 24 of 1997 and C.P. No. 25 of 1997 and extensively quoted in the preceding paragraphs, would show that Explanation of sub-clause (1) of Article 63-A of the Constitution has to be read in conjection with (a)(b) and (c). This in fact relates to deeming defection and it has been concluded by majority that any breach of above mentioned w t complained of must occur within the 'House'. The case in hand, however, does no. Fall within the said ambit. It is the case of defection simpliciter, visualizing a situation where a member of the House just leaves the party on whose ticket he had been elected. In such a situation question of criticising the party Policy, or voting against the party line or discipline in the House does not arise.
As for instance, the petitioner admittedly was elected from PB-23 Nasirabad was given ticket by JWP and was elected on the said ticket. If he deserts JWP or and joins any other Party, save in the instant case Balochistan National Party, such case is covered by defection as contemplated by sub-clause (1) of Article 63-A of the Constitution. Therefore, the question that his disqualification would be subject to para 1 of the order of the Court in CP No. 24 and C.P. No. 25 of 1997 would not be a correct interpretation. The reason being that as per allegations he deserted Jamhuri Watan Party and joined Balochistan National Party. This in fact is a case of floor crossing, and therefore, the Chief Election Commissioner had rightly relied on PLD 1995 S.C. 66 (Pir Sabir Shah v. Shad Muhammad Khan, MPA, NWFP). The relevant observations are reproduced as under:- "Section S-B of Political Parties Act, 1962 aims at weeding out disloyalty, treachery and corruption from the rank and file of the elected members to both the houses. It intends to keep the body politic pure and clean, the trust reposed by the voters intact and discourage, may, eliminating adventurism for personal gain, benefit and reward. Defection, horse-trading or floor-crossing by the members elected on a party ticket is the "odious type of corruption". Section 8-B or similar legislation wish to achieve pious and by removing evil, cleaning political culture and creating discipline in the elected representatives of the people. Discipline is the cornerstone without which no society can exist, flourish and develop, ln all the countries having Parliamentary form of Government, the evil of defection, shifting of loyalties, floor crossing, varying in degrees and withdrawal of support has been noticed and stops have been taken by legislation or through conventions to check them. The Jurists, Judges and Authors have disapproved it in strong terms".
(Underlining is ours)
I6. We now attend the most crucial point on fact as well as in law as arising out of the arguments of the parties in the instant case. The petitioner has been insisting before the Chief Election Commissioner as well as before us that no defection as defined by law has taken place. According to the petitioner he has not defected the party and the sole basis for coming to such conclusion are the press reports. The petitioner got himself examined on oath before us besides his affidavit already filed along with petition. In his statement on oath, the petitioner admitted that he belongs to Jamhuri Watan Party and was elected from PB-23 Nasirabad-IV. He denied the press conference as published in different newspapers that he had left Jamhuri Watan party and joined Balochistan National Party. According to him, he has not left his party i.e. Jamhuri Watan Party. He further, stated that all the news items published in different news papers at different times about the fact of his , leaving the Jamhuri Watan Party and joining Balochistan National Party are false. According to press statements dated 21st December . 1997, as reported in the Daily Jang, Quetta, the petitioner resigned, from Jamhuri Watan Party along with 35 notables of Umrani Tribe and joined Balochistan National Party. He stated in a written statement that he had all respects and regards for Nawab Muhammad Akbar Khan Bugti but on account of certain circumstances he decided to resigned from JWP and join Balochistan National Party. Similarly the daily Kohistan' dated 21.12.1997 also published the same news that in a Written statement to the press Sardar Fateh Ali Murani resigned from JWP and joined in presence of Central Leadership of BNP the said Party. Subsequent thereto on 1.3.1998 another statement came in Daily Jang Quetta where the petitioner stated that he has left JWP voluntarily and he has no repentance on his decision. This also was a written statement delivered to the press. Lengthy arguments were advanced by counsel for petitioner that the Court should not believed the press statement and Mr. Chishti argued that press statements can not be taken as granted particularly different times about the fact of his leaving the Jamhuri Watan Party and joining Balochistan National Party are false. According to press statements dated 21st December 1997, as reported in the Daily Jang, Quetta, the petitioner resigned from Jamhuri Watan Party along with 35 notables of Umrani Tribe and joined Balochistan National Party. He stated in a written statement that he had all respects and regards for Nawab Muhammad Akbar Khan Bugti but on account of certain circumstances he decided to resigned from JWP and join Balochistan National Party. Similarly the daily 'Kohistan' dated 21.12.1997 also published the same news that in a written statement to the press Sardar Fateh Ali Murani resigned from JWP and joined in presence of Central Leadership of BNP the said Party. Subsequent thereto on 1.3.1998 another statement came in Daily Jang Quetta where the petitioner stated that he has left JWP voluntarily and he has no repentance on this decision. This also was a written statement delivered to the press. Lengthy arguments were advanced by counsel for petitioner that the Court should not believe the press statement and Mr. Chishti argued that press statements can not be taken as granted particularly in view of the fact that the petitioner has stated on oath before this Court denying all the press statements and affirming that he has neither left nor resigned JWP. On the other hand Mr. M. Zafar, Raja M. Afsar contended that the petitioner is in the habit of changing his. Stance. He has never contradicted the press statements which not only came in one newspaper but almost all the newspapers published from Quetta but not only that the news was televised by Pakistan Television, judicial notice of which fact may be taken by this Court. The explanation given- in the petition as well as argued by Mr. Chishti was that the petitioner belonged to a far off village. On 20.12.1997 petitioner led a delegation of local people of his constituency to the Chief Minister's House concerning their welfare. He then left for his house. Since no newspaper is available in the village nor there is telephonic link, therefore, he did not know about press reports at all. After when the Provincial Assembly session was called from 20.1.1998 the petitioner sat in the seat shown in the treasury Bench along with members of JWP parliamentary Party/coalition partners. The JWP dis- associated from the coalition subsequently after preregation of Assembly session, therefore, it can not be presumed that he had left his party. This aspect of the matter has been dealt with by the Chief Election Commissioner and while referring to 1986 S.C.M.R. 1736 and reproducing the relevant paras, learned Chief Election Commissioner came to the conclusion that there is no positive finding that press reports can not be relied upon. He had made a clear distinction between the facts of the said case because the genuineness of the reports in the said case was not in issue. What in fact was in issue was the correctness or otherwise of the news published. As such a distinction has been made and according to us rightly so by the Chief Election Commissioner. Even otherwise it does not appeal to reason that an MPA has not read the newspaper and remained in his village throughout without listening to the Radio about his resignation from JWP. Lt is not only one newspaper in which the news has been published but at least two newspapers have been annexed and that it has been stated that the news was televised and it also broadcasted in the radio. It has come on record that the petitioner was present at Quetta on 20.12.1997 but there is no evidence that he left on 20th December 1997 to his village and remained there till the Assembly Session was summoned with effect from 20.1.1998. Not only that but the fact remains that on lst of March 1998 another news item was published in Daily Jang Quetta wherein petitioner stated that he had voluntarily left the Party and there is no repentance for such an action. He had the opportunity before, Chief Election Commissioner to have brought all this material but he did not bring. It appears to us as after thought. Although he has denied on Oath of making any press conference but there are photographs in press where he is shown sitting along with leaders of BNP. He did not contact, the Party Chief when they boycotted the session on the ground that he knew nothing about the party decision of boycotting the session. There were reasons to believe that he deliberately avoided because except him all the other were not present in the House. The petitioner has changed his stance before,, this Court which was taken before the Chief Election Commissioner. According to Chief Election Commissioner petitioner conceded that Ghulam Abbas is his driver but here be sworn an affidavit that Ghulam Abbas is not his driver. He was offered to address a press conference that he has not resigned from JWP but he did not concede to it. The petitioner could conveniently deny all the press reports when notice was received from the Chief Election Commissioner or thereafter, but he did not contradict any news of his resignation from JWP and joining BNP as published in the press. It is again impossible to believe that petitioner being an MPA when attended the Assembly Session remained unaware of the press reports that he had left Jamhuri Watan Party, or he know nothing that he has joined BNP. Rather he contradicted the news that he had sent Nawab Zulfiqar Magsi to Nawab Bugti to pardon him. Moreover he justified his action of leaving JWP as per press report of March 1998. Keeping in view the aforementioned conduct of petitioner we are of the view that he did address a press conference declaring to quit his party. He joined BNP in the said Press Conference, which not only came in the press, but in Radio and Television as well. As such we are not inclined to exercise our discretion in favour of petitioner.
17. Before concluding we would like to attend to the alternate plea taken in a lukewarm manner by Mr. Muhammad Aslant Chishti that operation of Article 63- A of Constitution has since been stayed by the Hon'ble Supreme Court, therefore, even if the petitioner had defected -the Party, the defection clause does not affect him, because alleged defection took place during the period when provisions as contained in Article 63-A of the Constitution was stayed through interim order passed by the Supreme Court. This point had been taken in the written statement but not pressed into service before the Chief Election Commissioner, as is evident from the judgment of the Chief Election Commissioner. On this score the petitioner could not press into service this point. However, since it is a law point, therefore, we intend to attend to it.
18. We have already reproduced the ad-interim, order passed by the Hon'ble Supreme Court to the effect that no adverse action shall be allowed to be taken against any member of the Parliament in view of newly added Article 63-A of the Constitution. Mr. M.A. Chishti made on oblige reference to Article 127 of the Constitution which reads as under:- "127. Subject to the Constitution, the provisions of clauses (2) to (8) of Article 53, clauses (2) and (3) of Article 54, Article 55, Articles 63 to 67, Article 69, Article 77, Article 87 and Article 88 shall apply to and in relation to a Provincial Assembly or a committee or members thereof the Provincial Government, but so that:-
(a) any reference in these provisions to Majlis-e-Shoora (Parliament), a House or the National Assembly shall be read as a reference to the Provincial Assembly;
(b) any reference in these provisions to the President shall he read as a reference to the Governor of the Province;
(c) any reference in these provisions to Federal Government shall be read as a reference to the Provincial Government;
(d) any reference in these provisions to Prime Minister shall be read as a reference to the Chief Minister;
(e) any reference in these provisions to a Federal Minister shall be read as a reference to a Provincial Minister;
(f) any reference in these provisions to the National Assembly of Pakistan shall be read as a reference to the provincial Assembly in existence immediately before the Commencing day; and (g)...................................
The counsel urged that provisions of Articles 63 to 67 of the Constitution as applicable to the Parliament shall be equally relevant and applicable to Provincial Assembly, therefore, if the petitioner had defected the party, he was saved and no action could be taken by the Head of the Jamhuri Watan Party or the Chief Election Commissioner.
19. It may be observed that there is no cavil that provisions of Article 63-A of the Constitution as applicable to the Parliament shall equally apply to the members of the Provincial Assembly, by dint of Article 127(a) and (f) of the Constitution. However, the leamed counsel lost sight of the fact that the provisions of Article 63-A or 14th Amendment Act, 1997 have not been stayed. What in fact has been stated in the order is that no adverse action shall be allowed to be taken against the members of the Parliament. Here reference is clearly intended to be made to the members of the Parliament as defined under Article 50 of the Constitution. The definition of Majlis-e-Shoora (Parliament) shall consist of the President and two Houses known respectively as National Assembly and the Senate. The said conclusion has been drawn in view of the background in which C.P. Nos. 24 arid C.P. No. 25 of 1997 Were filed. The prayer clause in the said C.P. As reproduced in the judgment of the Hon'ble Supreme Court inter alia reads as under:-
(i) ................................................................................................................................
(ii) Relief as sought through the Writ Petition attached herewith, may now be granted by the Supreme Court in exercise of jurisdiction vested in it under Article 184(3) of the Constitution;
(iii) It is further prayed that in the meanwhile, impugned 14th Amendment may be suspended and other interim reliefs sought through the interim application made in the Writ Petition be also allowed".
Similarly in C.P. No. 25 of 1997 following prayer was made:- "It is, therefore, respectfully prayed that by accepting this petition the Constitution (Fourteenth Amendment) Act, 1997 inserting Article 63-A in the Constitution, be declared to be void and invalid on account of its inconsistency with and repugnancy to the Fundamental Rights and other provisions of the Constitution".
The main prayer was that fourteenth Amendment be suspended, and other interim relief sought through the interim application be allowed including the prayer that a declaration be made that Article 63-A in the Constitution' be declared void and invalid on account of its inconsistency with and repugnancy to the Fundamental Rights and other provisions of the Constitution. The prayer in the interim application, however, has not been allowed in to-to but what has been observed was that no adverse action shall be allowed to be taken against members of the Parliament. Since the Session of the National Assembly, was in progress, hence such order was made. Thus the same is an order in rem though joint impersonal because it is an adjudication upon status of the members of the Parliament, As such it was applicable to members of Parliament including the members of National Assembly and the Senate. There was no petition pending in the Supreme Court as regards challenge to the members of the Provincial Assembly nor the Hon'ble Supreme Court suspended the 14th Amendment as a whole.
20. Another point which may lead to the same conclusion is that the disqualification as prescribed in Article 63-A of the Constitution shall be equally applicable to the members of the Provincial Assembly. But this in no case means that on account of an ad-interim order on petitions filed against 14th Amendment we should stretch the meaning of the Parliament to include the Provincial Assembly. It may be reiterated that for the purposes of Article 63-to 67, inter alia, the disqualification shall equally apply to members of Provincial Assembly because this is the mandate of the Constitution. An interim order can not be equated with the mandate of the Constitution. The background under which stay order has been which stay order has been passed must be kept in mind as mentioned hereinabove. The word Parliament may be used in the judgments sometimes in the context of Article 63-A or other relevant provisions/Articles but then though the order be in nature of judgment in rem but it have effect only to the status of members of the Parliament.
21. Besides under Article 189 of the Constitution any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. The above order in fact, with all respect, has not decided a question of law or enunciated a principle of law. However, such principle has been decided by the Hon'ble Supreme Court in case of Federation of Pakistan versus Aitzaz Ahsan and another reported in PLD 1989 S.C.
61. At page 64 the Hon'ble Supreme Court while settling down such principle determined as under:- "It is a well-settled principle of constitutional interpretation that until a law is finally held to be ultra vires for any reason it should have its normal operation".
While following the said principle and for reasons mentioned hereinabove, we are not inclined to accept that the said stay order had given a blanket authority to the members of the Provincial Assembly to defect the party and join hands with those who are in power for sake of any benefits whatsoever.
22. The petitioner had the knowledge at least at the time when he appeared before the Chief Election Commissioner that a reference for his disqualification on the ground of his defection has been made by the Head of the Jamhuri Watan Party, through the Speaker of Balochistan Provincial Assembly. Article 63-A (2) expressly provides a right of appeal within 7 days before the Head of the Party, he could instead of coming to this Court file an appeal before the Head of the Party and could explain his position that neither he defected the party nor he received any notice to the said effect. After the decision given by Head of the Party, the petitioner could approach this Court if the decision was against him. This was an adequate alternate remedy which has not been availed by the petitioner, therefore, on this score too, the constitutional petition is not maintainable, as the petitioner had an alternate remedy but he did not avail the same.
23. Lastly as observed in PLD 1995 S.C, 66 that "disloyalty, treachery and corruption from the rank and file of the elected members to both the Houses........... Defection, horse-trading or floor-crossing by the members elected on a party ticket is the odious type of corruption,..." So on the principle that Courts should not lean to maintain ill-gotten gains may not exercise discretion in favour of these who on one pretext or the other indulged in floor-crossing. As such on this count too, we are not inclined to exercise discretion in favour of petitioner.
24. For all such reasons we are inclined to dismiss the petition with costs. A copy of the judgment be sent to Chief Election Commissioner for further necessary action in accordance with law.