Find a Lawyer

MOULVI IQBAL HAIDER, ADVOCATE versus FEDERATION OF PAKISTAN

r Article (63 (?)) Terror ? Nitty Terrorism Act (XXVII of 1997), Article 6 Pakistan Protection of Pakistan Act (X of 2014), ineligible for membership of Provincial Assembly - State by the head of a political party Telephonic speech and its organs - Respondents, who were elected members of the Provincial Assembly and members of the political party, listened to the telephonic speech during the strike and were accused of delivering the speech. Took no action to stop and thus allegedly committed the crime. Provincial for the disqualification pursuant to Article 63 of the Constitution. Reference to the Respondents before the Speaker of the Assembly - that no situation was considered under Article (63 (1) (a) to (p) of the Constitution under which the Member Assembly) (Parliament) was disqualified. On the contrary, on the basis of some vague allegations against the founding leader, the applicant was referred to them - in the absence of any political party, and any solid material produced by the applicant, the respondents Reference was filed before the Speaker of the Provincial Assembly for disqualification of - Defendants were not directly charged with committing any crime, whichever The dog mitted that any clause of the Constitution or the Anti-Terrorism Act, 1997 or the Protection of Pakistan Act, 2014, would be mitted. Of course, nothing was left to the respondents, which might suggest that they have taken anti. The state had a slogan or facilitated or participated in it. Determine any activity that could potentially identify an offense under the Anti-Terrorism Act, 1997 or the Protection of Pakistan Act, 2014.

P L D 2017 Sindh 464 

Before Aqeel Ahmed Abbasi and Yousuf Ali Sayeed, JJ

Moulvi IQBAL HAIDER, ADVOCATE and another—Petitioners

versus

FEDERATION OF PAKISTAN and 42 others—Respondents

Constitutional Petition No.D-48 of 2017, decided on 21st February, 2017.

(a) Constitution of Pakistan—

—Art. 63(1)—Anti-Terrorism Act (XXVII of 1997), S.6—Protection of Pakistan Act (X of 2014), Preamble—Disqualifications for membership of Provincial Assembly—Telephonic speech delivered by head of a political party against the State and its organs—Respondents, who were elected members of Provincial Assembly and belonged to the political party in question heard the telephonic speech during a sit in strike and were accused of not taking any steps to stop the speech and thereby allegedly facilitated the offence—Petitioner filed reference against the respondents before the Speaker of the Provincial Assembly seeking their disqualification in terms of the Art.63 of the Constitution— Held, that none of the situations envisaged under Art. 63(1 )(a) to (p) of the Constitution under which a Member of Majlis-e-Shoora (Parliament) could be disqualified, had been cited by the petitioner, on the contrary, on the basis of some vague allegations against the founder leader of a political party, and in the absence of any concrete material produced by the petitioner, reference was filed before the Speaker of the Provincial Assembly for seeking disqualification of respondents—No direct allegation was made against the respondents for having committed any offence, which may attract any of the provisions of the Constitution or the provisions of Anti-Terrorism Act, 1997 or Protection of Pakistan Act, 2014—Admittedly, nothing had been attributed to respondents, which may suggest that they had raised any Anti-State slogans or facilitated or participated in any activity which could possibly attract any cognizable offence under Anti-Terrorism Act, 1997 or the Protection of Pakistan Act, 2014-Petitioner did not file the authenticated audio or written version of the purported telephonic speech, nor established any overt role of respondents toward knowledge, facilitation or even participation in respect of objectionable part of such telephonic audio speech— Respondent were the elected Members of Provincial Assembly and represented the will of the large number of voters in their respective constituencies, who had casted their votes in favour of respondents, therefore, in the absence of any valid reasons as provided under Art. 63 of the Constitution they could not be de-seated on the basis of mere whims and baseless allegations by some individual, who did not prima facie have any locus standi or cause of action even to file such reference—Constitutional petition was dismissed accordingly, [pp. 472, 479] A & C

Ayatllah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52 rel.

(b) Constitution of Pakistan—

—Arts. 63(2) & (3)—Speaker of Provincial/National Assembly, powers of—Scope—Question of disqualification of a member of the Provincial/National Assembly—Office of the Speaker of the Assembly or the Chairman of the Senate, as the case may be, was not a post office to refer each and every question to the Election Commission, on the contrary it was the discretion of the Speaker/Chairman, either to refer the question to the Election Commission for appropriate orders or to decline to refer such question, if there was no material or reasonable cause to refer such reference to the Election Commission— Article 63(2) of the Constitution, however, provided that, if the Speaker/Chairman did not decide or refused to refer the question of disqualification of any Member of the Parliament, to the Election Commission within thirty (30) days from the date of its receipt by the Speaker/Chairman, such reference shall be deemed to have been referred to Jhe Election Commission; thereafter, in terms of Art. 63(3) the Election Commission had to decide the question regarding disqualification of any Member within ninety (90) days from its receipt or deemed to have been received, but, only in appropriate cases where, there was sufficient material and evidence available on record to substantiate the allegations against such Member which may be relatable to any of the instance as detailed in clauses (a) to (p) of Art.63(l) of the Constitution. [p. 473] B

(c) Constitution of Pakistan—

—Arts. 63 & 199—Principles for examining the maintainability of a Constitutional petition filed under Art. 199 of the Constitution seeking disqualification of a Member of Parliament in terms of Art.63 of the Constitution stated.

Following are the legal principles which have to be kept in view while deciding a Constitutional petition before the High Court seeking disqualification of a Member of the Parliament in terms of the Article 63 of the Constitution:

(i) That pre-election alleged disqualification of a Member of the Parliament, could not fÓrm; a basis for a reference of disqualification, to be sent by the Speaker of the Assembly to the Chief Election Commissioner;

(ii) That in case a reference was submitted to the Speaker of the National Assembly for forwarding the same to the Chief Election Commissioner, he had to take a decision as to whether a "question" as contemplated under Article 63(2) of the Constitution had arisen. He was not to act just as a post office and to forward the reference without judicious determination of the matter;

(iii) That it was only the Chief Election Commissioner who was competent to pass the order of disqualification of an elected Member of the Parliament under Article 63(2) of the Constitution;

(iv) That an individual, who sought a direction in a nature of mandamus, he had to show that he had an "interest" in the matter and that he was really an "aggrieved person" within the meaning of Article 199 of the Constitution;

(v) That while levelling allegation of disqualification against an elected Member of the Parliament, the petitioner had to take care that the said allegations were not baseless and were not motivated inasmuch as the exercise amounted to interference with the choice of franchise who were presumably more wiser than one individual, in matter of election of their representatives;

(vi) That while exercising of power of judicial review the principle of 'judicial restraint" was to be followed as individual interest/was to give way to the collective good and public interest;

(vii) That High Court had the jurisdiction to issue an appropriate writ or order against the Speaker of the National Assembly provided a case for issuance of such a writ or order was made out; and,

(viii) That in order to initiate proceedings of disqualification against a Member of Assembly, allegations of misconduct had to be based upon cogent material, which shall have to be proved by evidence. [p.481] D

Kanwar Intizar Muhammad Khan, Advocate v. Federation of Pakistan and others 1995 MLD 1903 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 5th January, 2017.

jobs for advocates from Rohri lawyer