AKHTAR ZAMAN MALGHANI, J.--Petitioner, Nawabzada Mir Balach Khan Marri has assailed order of the Election Tribunal Balochistan,Quetta dated 10-9-2002 passed in Election Appeal No,4 of 2002, through this petition wherein the following relief has been claimed:--
(i) Honourable Court may be pleased to declare that the impugned order dated 10-9-2002, (in so far it concerns disqualification on account of dismissal for misconduct for absence from duty) is without lawful authority and no legal effect.
(ii) Honourable Court may graciously set aside the impugned order of learned Appellate Election Tribunal dated 10-9-2002 and to restore the order of Returning Officer, Kohlu dated 27-8-2002/30- 8-2002 and to dismiss appeal of respondent No,2.
(iii) Learned Court may be pleased to direct Returning Officer to include petitioner's name in the list of validly nominated candidates for General Election 2002 from PB-23 Kohlu Agency, Kohlu with further direction to allot symbol under the rules and to take all necessary steps allowing petitioner to effectively participate in the forthcoming election from PB-23 KohIts Agency.
2. Briefly stated, facts of the case are that the petitioner filed nomination paper for contesting election from Constituency PB-23 Kohlu Agency for Balochistan Provincial Assembly which was accepted by the Returning Officer/respondent No,3 on 27-8-2002. Respondent No,2 being aggrieved by the said order, preferred an appeal before the Election Tribunal Balochistan Quetta under section 14 (5) of Representation of the People Act, 1976 mainly on the ground that the petitioner was dismissed from service, as such; he was disqualified under the election laws for contesting the election and secondly; the petitioner has produced Degree of the then U.S.S.R.
Without any equivalence certificate from University Grants Commission, thus does not have the prescribed qualification as required by Article 8-A of the Conduct of General Elections Order, 2002.
After hearing the parties the learned Election Tribunal vide impugned Order held that the petitioner was disqualified from contesting election being dismissed on the ground of misconduct, while ground regarding educational qualification was overruled by the learned Election Tribunal. It is pertinent to mention that ground of educational qualification was neither agitated nor pressed before us by the counsel for respondent No,2
3. Learned counsel for the petitioner raised the following contentions:
(i) That the petitioner was dismissed from service on the ground of misconduct vide Notification dated 31-8-2000 being found absent from duty as such he could not have been declared disqualified. In order to substantiate his arguments he invited our attention to the provisions of Article 8D(2)(i) of the Conduct of General Elections Order, 2002 and argued that a person could be disqualified' under the said clause, only when he had been dismissed from service on the ground of misconduct involving moral turpitude.
(ii) That under Article 3, the Conduct of General Elections Order has overriding effect over other laws including Constitution, therefore, provisions of The Representation of the People Act, 1976 and the Constitution will give way wherever there is any contradiction or inconsistency.
(iii) That the learned Tribunal has misdirected itself by holding that the Legal Framework Order, 2002 read with the Schedule thereunder was applicable in the case of petitioner.
4. Rebutting the arguments, Mr. Muhammad Ashraf Khan Tanoli learned counsel for respondent No,2 made the following submissions:-
(i) Under Article 199 of the Constitution of the Islamic Republic of Pakistan a person must come with clean hands in order to obtain equitable relief. According to him petitioner is an absconder and fugitive from law. As such, is not entitled to discretionary relief.
(ii) The Tribunal is consisting of two Hon'ble Judges of this Court who have exercised their judicial discretion against the petitioner, therefore. Same should not be disturbed in writ jurisdiction.
(iii) The impugned order has been passed within the jurisdiction .Conferred upon the Tribunal by the statute and same cannot be termed as illegal. Void or coram non judice.
(iv) By making reference to various Orders issued by Chief Executive, he stated that Legal Framework Order being later in time will prevail over other Orders including The Conduct of General Elections Order. 2002.
(v) He invited our attention to Article 3 of the Legal Framework Order, 2002 and according to him by virtue of aforesaid Article this Order has come into force at once and is in the field. He was of the view that by the Legal Framework Order.
2002. Constitution has been amended and thus under Article 63(1)(i) a person is disqualified. If he is dismissed on the ground of misconduct.
(vi) No Act or law can have overriding effect over the Constitution and any provision to that extent would be void and non-existent. He relied on the judgment of Hon'ble Supreme Court reported in PLD 2002 SC 994.
(vii) In the alternate he argued that if the above grounds do not find favour with the Court, even then the petitioner was disqualified under sub-clause (k) of clause (2) of Article 8D of the Conduct of General 'Elections Order, 2002 because the petitioner was dismissed from service on 31-8-2000 and two years have not been elapsed on 26-8-2002 which was the last date for filing of the nomination paper. In order to substantiate his arguments he also placed on record the revised schedule of election programme.
5. We have considered the arguments put forth by the learned counsel in the light of relevant provisions of law. It will be appropriate to reproduce the operative portion of the impugned judgment: "A bare perusal of the above-quoted provisions of Legal Framework Order, 2002 would show that, a person would be disqualified from contesting the election, on the ground of misconduct or moral turpitude, which corresponds to the provisions of section 99(l-A)(i) of the Act, but the Order of 2002, states, that a person shall be disqualified from contesting the election on the ground of misconduct involving moral turpitude. In view of the above legal position, we are inclined to subscribe to the contentions of Mr. Ashraf Khan Tanoli, Advocate and Mr. K.N. Kohli, learned D.A.-G. That the provisions of Article 63(1)(i) of the Legal Framework Order, 2002, are attracted and fully applicable to the case of respondent No,1, which lays down that a candidate stands disqualified from contesting the elections on the ground of 'misconduct' or 'moral turpitude'. However, since word 'misconduct' has not been defined in the Act of 1976 or in the Legal Framework Order, 2002, therefore, the only conclusion which can safely be drawn is; that a person stands disqualified from contesting the election, if he is found guilty of misconduct; of any type i,e, any forbidden act, unlawful behaviour, dereliction from duty, dishonest act, etc. As observed hereinabove, the notification of dismissal of appellant from service is still holding the field, as it has never been challenged before any competent Forum; therefore, it completely stands as barrier against the respondent No,1, from contesting the election, in view of the relevant provisions of law, reproduced hereinabove." The perusal of above reproduced order shows that the petitioner has been disqualified from contesting election in view of Article 63(1)(i) of the Constitution as incorporated in the Legal Framework Order, 2002. It may be noted that by virtue of Article 4 of the Legal Framework Order, 2002 reproduced hereinbelow, the amendments made in various Articles of Constitution relating to the general election are not holding field at present and these will become in three only on such day as the Chief Executive may, by Notification in the official Gazette, appoint as provided in Article 4 of the Legal Framework Order for which different days may be appointed in respect of different provisions by the Chief Executive:
4. Revival of Constitution of 1973.--The provisions of the Constitution as amended by this Order and by such other Orders as may be promulgated hereinafter, shall stand revived on such day as the Chief Executive. May, by Notification in the official Gazette, appoint: and different days may be so appointed in respect of different provisions.
We are, therefore, not inclined to accept the contention of the learned counsel for the private respondent that the, amendments made in the Constitution, by virtue of Article 3 of the Legal Framework Order as regards the general elections being held under The Conduct of General Elections Order, 2002; the petitioner is disqualified in 'view of the amended Article 63(1)(i) of the Constitution for the simple reason that within the meaning of Article 4 as yet the equisite Notification in the official Gazette for the revival of the Constitution or any amended provisions of the Constitution relating to the disqualification of a candidate to contest the . Elections has not been issued, hence the amendment so introduced in the above said Article of the Constitution will not.Come into play.
6. We also find force in the contention of learned counsel for petitioner that Conduct of General Elections Order, 2002 has overriding effect over the other laws for the time being in force such as The Representation of the People Act, 1976_ Article 3 of The General Elections Order, 2002 provides as under:-- "3. The provisions of this Order shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force relating to the forthcoming elections to the (Senate) National Assembly and the Provincial Assemblies." Similarly Article 10 of The General Elections Order, 2002 is reproduced hereunder:-- "10. Removal of.Difficulties.--(1) If any difficulty arises in giving effect to any of the provisions of this Order, the President may make such provisions for the removal of the difficulty as he may deem fit.
(2) For the purpose of bringing the provisions of the Constitution and of any of the laws relating to elections to the (Senate), National Assembly and the Provincial Assemblies into accord with the provisions of this Order, the President may by Order make such adaptations, modifications, additions or omissions as he may deem necessary or expedient.
(3) Any Court, tribunal or authority empowered to enforce any of the law referred to in clause (2) shall, notwithstanding that no adaptations have been made in such law by an Order made under that clause, construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Order."
Perusal of Article 3 read with sub-Article (3) of Article 10 shows that The Conduct of General Elections Order, 2002 has overriding effect over the other law. As the case of petitioner does not fall within the mischief of any of the disqualification clause of the Order, he cannot be disqualified on the strength of any other law which contains a clause inconsistent with that of the Order. Now coming to the case of petitioner, we have, already held that the petitioner could not be disqualified under the provisions of the Legal Framework Order which are not applicable at present.
The petitioner was dismissed from service on the ground of wilful absence which in our humble view, does not involve the element of moral turpitude and for disqualifying him under clause 2 (i) of Article 8D of The Conduct of General Elections Order, 2002 it is necessary that the dismissal must involve the ingredients of moral turpitude which is wanting/lacking in the present case. Therefore, we are of the considered view that the petitioner was not disqualified to contest the election merely because he was dismissed from service on the ground of misconduct resting upon absence from duty.
7. So far as objection regarding maintainability of petition on the ground of alleged absconsion of petitioner is concerned, it will be suffice to observe that the present petition has been filed through attorney on the basis of power of attorney duly attested and verified by the office of High Commissioner of Pakistan at London as provided under the Power of Attorneys Act read with Article 95 of the Qanun-e-Shahadat Order. Moreover, we are not inclined to go into this factual controversy, particularly when it does not affect the qualification or disqualification of the petitioner under relevant laws.
8. Reverting to alternate plea advanced during course of arguments that the petitioner was also disqualified under sub-clause (k) of clause (2) of Article 8D of The Conduct of General Elections Order, 2002, it is suffice to observe that the said ground was never agitated before the learned Election Tribunal as well as before the Returning Officer. It is worthwhile to note that the petitioner was dismissed from service on 31-8-2000 and two years have already been elapsed on the date of scrutiny (2-9-2002). Therefore, this additional ground is also not available to the private respondent. In view of the above discussion and reasons the impugned order of the learned Election Tribunal is set aside and declared as of no legal effect. Accordingly; the petitioner is declared' to be a validly nominated candidate by granting consequential relief that his nomination papers be processed by the Returning Officer to the Election Commission of Pakistan through the Provincial Election Commissioner enabling him to contest the election from the constituency i,e, PB-23 Kohlu Agency for the Balochistan Provincial Assembly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.