ABDUL, HAKEEM KHAN, J.-Sub. Major (Retd.) Anar Badshah, resident of Dab, Tehsil Karak, District Kohat, has moved this Constitutional petition for the issue of a writ of quo warranto to Mohsin Ali Khan, Member of Provincial Assembly, Park Lane, University Town, Peshawar. To show under what authority of law he is holding the public office of Member, Provincial Assembly N.-W. F. P., while he is not a citizen of Pakistan.
2. A reference to the petition will show that the material facts on which the petitioner relied in support of his contention that Mr. Mohsin Ali Khan, respondent, was not a citizen of Pakistan are-
(1) he holds a British Passport No, 466733 valid for the period 2-8- 0 to 2-8-70;
(2) he entered Pakistan at Torkham on 1.9-61 vide, entry of Foreigners Register at Torkham serial No, 34;
(3) he had not been issued a naturalization certificate as far as the petitioner was aware;
(4) be originally hailed from Rampur in India but instead of migrating to Pakistan after partition, he migrated to United Kindom alongwith certain other members of his family, while his parents migrated to Bughdad, Iraq, and as such he continued to be a forrgin national ;
(5) even though he manipulated entry of his name in the Electoral Rolls as a voter through his father-in-law Mr. M. Aslam Khattak, a former Governor of N.-W. F. P. He was not qualified under Article 113(a) of the Constitution for participating in any election.
3. The petition was resisted by the respondent denying vehemently the allegations that he was not a citizen of Pakistan. He submitted that he was holding a Pakistani domicile certificate dated 15-6- 72, a Pakistani Passport dated 20-11-72; was married to a Pakistani girl in 1966 and was having two children from her who were residing in Pakistan ; all his assets are in Pakistan and he has no assets abroad ; he was looking after the business of his father-in-law at Peshawar and Rawalpindi since 1966 ; his name was duly entered in the electoral roll in 1969-70 ; he had temporarily gone to England for his education and came back to Pakistan in 1965 after completing it ; and he visited Europe for a short period of two months in 1966 and Kabul for four days in August 1967. He, however, admitted that he held British Passport No, 466733 but added this would not deprive him from Pakistani citizenship. He further explained that the entry relied upon by the petitioner was his return entry from Kabul where he had gone for four days alongwith his wife for a short holiday. He asserted that he was not a foreign national and proceeded on to explain his own affairs and that of his family vide paragraph 4 of the written-statement which is in detail. Later, in paragraph 3 of his written-statement he made a categorical assertion that since he had migrated from India to Pakistan in 1960, he was a citizen of Pakistan, adding in the succeeding para. That according to his advice Naturalization Act was not attracted to his case and if at all applicable he has fulfilled all qualifications necessary for the acquisition of citizenship under the Naturalization Act of 1926.
4. The respondent also brought it to the notice of the Court that the defeated candidate, Lt. General Habibullah Khan and Master Khan Gul had filed two election petitions inter alia on the ground that he was disqualified to be elected, for, he was not a citizen of Pakistan, and both were being heard by an Election Tribunal and that one of those petitions was not only ripe for hearing but has reached the phase of a final decision on the point of the respondent's nationality. The respondent proceeded on to say that the defeated candidates have brought all the evidence on the record in support of their allegations and that he was also going to summon witnesses to establish his contention that he did migrate to Pakistan as early as in 1950 with the intention of settling here permanently. All this, the respondent emphasised, required the determination of highly sensitive and controvertional questions of law and facts and an appeal eventually was to come up before a Bench of this Court.
5. Before we proceed further we should like to bring on record that after about a month of the written-statement filed by the respondent, the petitioner moved a supplementary petition under section 151 of the C. P. C. With a view to place additional facts relevant to the matter in issue along- with three Annexures praying further that he should be allowed to add an additional ground viz., that respondent's name not having been brought in the electoral roll lawfully, was not qualified to participate in the election based on those electoral rolls. The three Annexures are :
(1) copy of the respondent's application dated 11-6-72 for the issue of a domicile certificate;
(2) copy of the domicile certificate issued by the Deputy Commissioner on 16-6-72, and
(3) copy of visa application by the respondent's father dated 18-11-52 which showed him to be Indian national.
6. The supplementary petition was opposed by the learned counsel for the respondent but his objections were overruled by us on 5.6-75 as the Annexures which the petitioner wanted to place on record were not only alluded to in the written-statement of the respondent but it appeared that those had been already brought on the record of the election petition. , The objection of the learned counsel for the respondent was that even though the documents were relied upon by him in the election petition, the fact remained that those were pressed into service by him in the inquiry before the Election Tribunal in support of his contention that he was a citizen of Pakistan. The admissions contained in the documents could not be torn out of the context. Taking into consideration these submissions of the respondents, we allowed him to file an affidavit to explain the implications and he has availed of the opportunity given to him today. It may, however, be mentioned that though these explanations and the affidavit of the respondent have been brought on the record we don't feel any necessity to look into it, for, we consider that the case can be disposed of on a preliminary point with reference to the pleadings of the parties, admissions of three supplementary Annexures by the petitioner notwithstanding.
7. The main burden of the argument addressed on behalf of the petitioner is that he is a voter of the Constituency and as such he is very much concerned to lay the information before the Court that respondent was not only disqualified from becoming the a ember of the Provincial Assembly but that disqualification continues even today and therefore a writ of quo warranto may be issued notwithstanding the pendency of the election petitions of the rival candidates. According to him, the facts are simple and stand proved conclusively. Needless to recall that the petitioner relies on the fact that the respondent was holding British Passport valid up to August 1970 and that he entered Pakistan on the authority of that passport on 1-9-67 and that he has not gone through the process necessary for the issue of the naturalisation certificate and as a matter of fact no such certificate has been issued in his favour. The learned counsel for the petitioner invited our attention to a decision of this Court in Civil Appeal No, 23/73 decided on 17-9-74 reported as Khaista Gul v.
Akbar Khan and 7 others (1) and Lt.-Col. Farzand All and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (2).
8. In view of the fact that in Khaista Gul's case the petition as moved and decided after the election petition had been withdrawn and Lt.-Col. Farzand Ali's case was also not a case where the election petition was pending, we directed the learned counsel on either side that they should try to find out a precedent where a writ of quo warranto was allowed even though an election petition was simultaneously pending. The learned counsel for the petitioner has made our task easier when he cited before us the decision of their Lordships of the Supreme Court in Muhammad Zafarullah Khan v. Muhammad Khan and another (Civil Appeal No, 23 of 1973, decided on 17-9-74)., This case also relates to a pre-election disqualification which was continuing, but it is identical with the present case inasmuch as a writ of quo warranto was allowed while the election petition was pending. It may be elaborated that the High Court allowed the writ and appeal of Muhammad Zafarullah Khan, the elected person, to the Supreme Court failed. The learned counsel for the respondent pointed out that though a reading of the decision of the Supreme Court would show that it was contended before their Lordships that a writ of quo warranto even if not barred yet the jurisdiction being discretionary, the High Court ought not to have exercised the same but no enunication of law was made on the point and as a matter of fact the case was disposed of on the basis of the conclusion of their Lordships that the disqualification being continuing one, a writ of quo warranto will be maintainable. In support of his submission the learned counsel for the respondent invited our attention to Haji Muhammad Siddlq v. Babu Karam Bakhsh and 3 others (3), wherein their Lordships refused to exercise the jurisdiction in favour of a person on the basis of paragraph 281 at pages 148-150 of Halsbury's Laws of England, Volume II, elaborating that since an election petition had already been filed and the matter was sub judice in that forum it
(1) PLD 1975 Pesh. 146 (2) PLD 1970 SC 98
(3) PLD 1971 Lab. 912 ' was not just and fair to exercise the discretion so as to fetter the proceedings already competently instituted on the subject, especially when the matter involved recording of evidence and determining intricate questions of facts and law, a job which could more appropriately be performed by the Election Tribunal than in the High Court in the exercise of its writ jurisdiction. After giving our anxious consideration to the matter, we have cone to conclusion that in view of the Supreme Court judgment in Muhammad Zafarullah's case it will not be possible to say that a writ of quo warranto should be refused where an election petition is pending, but this will not, however, mean that this rule will be universally applicable, that is to say, even to such cases where the matter involves recording of evidence and determination of intricate and rather complicated questions of facts which alone would lay the foundations for the legal inferences that this or that party would like us to draw. Moreso, when another Tribunal is seized of the matter and it has already gone a long way and the inquiry is in final stages.
9. There is yet another aspect of the case which recommends to us favourably the stand taken by the respondent and that is to be found in the fact that no sooner the matter is decided by the tribunal one way or the other, an appeal is likely to come up before a Division Bench of this Court.
This feature of the case affords sufficient guarantee not only to a defeated candidate but also to a person who is a voter in the Constituency. The satisfaction of the relator lies in the fact that the contesting candidates are pursuing the very point vigorously before the Tribunal and that even if the respondent succeeds before the Tribunal that may not preclude him or any other voter from invoking the constitutional jurisdiction of this Court.
10. The contentions of the parties that have been reproduced in the earlier part of this judgment will demonstrate that the facts are not as simple as the learned counsel for the petitioner wants us to believe. The documents relied upon by the petitioner even though their authenticity is not in dispute have got to be considered alongwith the explanation given by the respondent, without that recourse there cannot be a complete picture and a just resolution of the dispute. Possession of a passport, it has been argued on behalf of the respondent, will not determine the vexed question of citizenship conclusively and if it were to be so, then the respondent also had a Pakistani Passport.
We refrain from expressing our views on this point at this stage, for, it appears to us that on the basis of some documents produced by the respondent himself the petitioner wishes to establish that he is a British subject or alternatively an Indian national, while notwithstanding the aforesaid documents the respondent asserts assiduously that he is a person who migrated to Pakistan before 1950 and as such section 3(d) of the Pakistan Citizenship Act of 1951 makes him citizen of Pakistan and in this respect he relies on several other documents which he has filed alongwith his written statement. It comes to this that facts on which the petitioner relies are being hotly disputed and in support of the stand taken by the respondent the latter is relying heavily on numerous documents, and oral evidence. In the circumstances, therefore, it will be indeed stifling the inquiry before a proper forum in a matter which cannot be determined without adverting to evidence oral and documentary that both sides have or may produce before that Tribunal. The ticklish question which does not admit of easy resolution in this jurisdiction is as to whether the respondent did migrate to Pakistan before 1961 and that this was with the intention of residing permanently in Pakistan.
11. On the view of the matter that we take, we will dismiss this petition without making any order as to costs.