Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Civil Appeal No. 5 of 1986, decided on 19th May, 1986.
(Against the judgment and order, dated 16‑1‑1986 of the Lahore High Court in Election Petition No. 54 of 1985).
‑‑‑Ss. 52 & 67 (3)‑‑Election petition‑‑A respondent in election petition neither appearing before Election Tribunal nor contesting proceedings and remaining un-represented throughout‑‑Right of such respondent before Supreme Court‑‑Factual aspect of submissions of said respondent, held, could not be taken note of or dealt with except in so far as same got adjudicated in contest between main contestants.
Islamic Republic of Pakistan v. Abdul Wali Khan P 1, D 1976 S C 57; Sher Muhammad v. Crown P L D 1949 Lah. 511 and Muhammad Saeed v . Election Petition Tribunal P L D 1957 S C (Pak) 91 ref.
‑‑_S. 62‑ [as amended by Representation of the Peoples (Sixth Amendment) Ordinance (XVIII of 1985]‑‑Trial of Election petition‑ procedure to be followed after amendment of S. 62 of Ordinance, 1985, held, would be in accordance with procedure laid down by Election emission subject of course to provisions of Act LXXXV of 1976 and Rules made thereunder‑However, Election Tribunal would have all the powers of a civil Court trying a suit under Civil Procedure Code, 1908‑‑Such Tribunal would be deemed to be a civil Court within meaning of Ss. 476, 480 a 482 of Criminal Procedure Code, 1898.
‑‑‑S. 2(9)(14) and O.XX, R.4‑‑Terms "judgment" and "order"‑‑Meaning and connotation of. [Words and phrases].
"Judgment" has been defined in section 2, clause (9) of the Civil Procedure Code as "judgment means the statement given by the Judge of the grounds of a decree or order" and order has been defined in clause 14 of the same section as "formal expression of any decision of a civil Court which is not a decree". Further, Order XX, Rule 4, sub‑Rule (2) prescribes that judgment of Courts other than the Court of a small causes "shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision". Rule 5 of the same Order provides "in suits in which issues have been framed the Court shall state its finding or decision with reasons therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.
‑‑‑S. 67‑‑Judgment to satisfy requirement of law‑‑Test‑‑A judgment, held, would conform to provisions of law where same recorded a decision, was signed and properly announced.‑‑[Judgment].
‑‑‑‑ A submission recorded in memorandum of appeal but not urged during course of arguments, held, need not be dealt with by Court.
‑‑‑S. 67‑‑Election petition‑‑Disposal of by short order‑‑Effect‑‑Election Tribunal, held, would not exceed its powers or jurisdiction in disposing of petitioner a short order if same records a decision, was signed and properly announced.
‑‑‑S. 14(5)‑‑Term "finality in election matter", connotation of‑‑Where express authorization exists in favour of two authorities or forums in respect of identical subject, one conferred by superior law, held, would prevail over that conferred by inferior law‑‑Judicial adjudication would prevail over executive or administrative determination‑‑More plenary adjudication would prevail over the one which was summary whether in procedure or in effect.
Imtiaz Ali v. Ghulam Muhammad Butt and others P L D 1958 S C (Pak) 228; Sirajul Islam Khan v. Ahsan Ali Mondal P L D 1969 S C 5;
Umar Daraz Khan v. Muhammad Yousaf and others 1968 S C M R 880; Ghulam Younas Khawaja v. Malik Faizullah and another 1969 S C M R 183; Mukhtar Hussain Shah v. Wasim Sajjad P L D 1986 S C 178 and Emmanul Masih v. Punjab Local Councils Election Authority and others 1985 S C M R 729 ref.
‑‑‑Ss. 109 to 119‑Houses of Parliament and Provincial Assemblies Order (5 of 1977), Art. 19(1)‑‑Security for good behaviour‑‑There is no identity in matter of requirement of evidence or standard of proof between Se. 109 to 119, Cr.P.C. and S. 10(1) and (d)(e) t (f) of Order 5 of 1977‑‑Proceeding under Ss. 109 to 119 preventive in nature‑ Apart from presence of jurisdictional facts, a mere bona fide suspicion, held, would be sufficient to warrant action‑‑However, it is substantive w which lays down in each case, relevancy, standard of proof and weight to be given to evidence.
Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and 3 others P L D 1957 S C (Pak.) 91; Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others P L D 1973 S C 160; Syed Saeed .Hassan v. Payar Ali and 7 others P L D 1976 S C 6; Ramzan Ali v. The State P L D 1967 S C 545; Ai5dul Rasheed alias Sheedu v. The State 1983 P Cr. L J 1091; Muhammad Yousaf Azad v. Tribunal constituted under Sind Crimes Control Ordinance and another 1982 P Cr. L J 275; Muhammad Iqbal and another v. The Municipal Committee, Nankana Sahib P L D 1973 Note 95 at p. 145; Qasim and 2 others v. The State P L D 1971 Kar. 473; Siddiqullah alias Siddique v. The State 1970 P Cr. L J 1269; Hubdar Ali v. Emperor A I R 1933 Oudh 251; Gudri Khatik v. Emperor A I R 1923 All. 595 and Jai Singh v. Emperor A I R 1930 Oudh 357 ref.
‑‑‑S. 54‑‑Exclusionary rule of evidence stated.
The exclusionary rule of evidence may appear to be too formal and somewhat strict and inflexible, but it has its roots deep down in law. While commenting on section 54, Evidence Act Minor mentions that "it is no disproof of good character that a man has been suspected or accused of a previous crime". Wharton Criminal Law Evidence, 9th Edition mentions the following principle: "The only safe course, therefore, is to found the verdict exclusively on evidence duly received and on inferences logically to be drawn from such evidence" And no evidence is to be received which is second hand rendering of testimony not produced, though producible, by which a higher degree of certainty could be secured". Wigmore commenting on Theory of Hearsay Rule in section 1362 observes as follows:‑
"The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrust‑worthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross‑examination"
and quotes with approval the following remark of Kent, C.J. (in Coleman v. Southwick, 9 John. 50):
"A person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities, he entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.
Monir in his commentary on section 183 of the Evidence Act remarks "where no opportunity to cross‑examine the deponent has been given his testimony would be inadmissible".
‑‑‑‑S. 54‑‑First Information Report, production of‑‑Conents of F.I.R.‑ Effect of judicial verdict‑‑Where production of First Information Report was meant not to go any further than to show mere registration of a case, judicial verdict thereon of discharge or acquittal, held, would react more strongly against correctness of contents thereof.
Sher Muhammad v. Crown P L D 1949 Lah. 511 ref.
‑‑‑Ss. 52 to 55‑‑Houses of Parliament and Provincial Assemblies Order (5 of 1977), Art. 10(1)(d)(e) a (f)‑‑Question of relevancy of character discussed.
The question of relevancy of character where it is not a fact in issue, is governed by section 52 to section 55 of the Evidence Act. These sections limit its relevancy and also control the nature of proof admissible or required. The substantive law in the present case (clauses (d)(e)(f) of sub‑Article (1) of Article 10 of the Order require a candidate to be of "good character", "not commonly known as one who violates Islamic Injunctions", possessed of "adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sin", is sagacious, righteous and not profligate and honest and ameen". All these qualities of the human mind and the heart have the effect of enlarging the traditional concept and meaning of character and thereby permitting the admission of wide range of evidence to prove or disprove it. Character has been given the following meaning:‑‑
(i) "the aggregate of the moral qualities which belong to and distinguish an individual person, the general result of one's distinguishing attributes: "
(ii) character is the actual moral or physical disposition or sum of traits and is to be distinguished from reputation or any other source of evidencing character;
(iii) "the word, character, includes both reputation and disposition" (explanation to section 55 of Evidence Act).
The manner in which the character is to be proved where it is a fact in issue and where it is not a fact in issue will appear from the following observations:‑
(i) "It has been said that in legal parlance, the term "character" has a dual meaning. It may refer to a person's private life, about which the public may have no knowledge, or it may mean the character a person enjoys by reputation; and whether it will be given one or the other meaning will, of course, depend on the circumstances of its use in the particular case, for context and intent must generally be resorted to in the interpretation . . ... As a general rule, the character of a person cannot be proved from the personal knowledge of the witness, and the personal or individual opinion of the witness in that regard is not admissible; the existence of an inference on the part of an observer as to the existence of a particular relevant trait or character is inadmissible, even _ where it is an inference from observed conduct. According to some cases, however, such evidence may be received when the fact as to actual character was placed in issue by the pleadings, and it has been stated broadly that the habits or moral character of a person may be shown by the testimony of one who has personal knowledge of the facts."
(ii) Character may be proved by (a) "particular instances of conduct, good or bad from which is inferable the permanent disposition that has inspired them" (b) personal knowledge of one who has observed the man (c) the reputation of the man, the net expression of a multitude of personal opinions" based more or less on personal intercourse.
]
(iii) "Negative evidence, such as 'I never heard anything against the character of the man is the most cogent evidence of a man's good character and reputation because a man's character is not talked about till there is some fault to be found with it. It is the best evidence of his character that he is not talked about at ail."
‑‑‑ Ss. 45 to 51‑‑Character, conduct and disposition‑‑Opinion of individuals‑‑Admissibility‑‑opinion of individuals about character, conduct and disposition, held, would not be admissible in evidence‑ However, specific instance from which an inference with regard to fact in issue could be drawn would 'certainly be admissible.
‑‑‑Art. 10(1)‑‑Evidence Act (I of 1872), S. 114 (d)‑‑Character of individual, determination of‑‑While dealing with character of individual where specific instances were admissible in evidence, presumption arising under S. 114(d) of Evidence Act in favour of continuance or immutability, held, would take over unless it was shown that a manifest change had place‑‑Past instances about character were relevant though their evidentiary weight might diminish on account of inordinate passage of time.
‑‑‑S 52‑‑Election petition‑‑Relevancy of evidence‑‑Power of Election Tribunal‑‑Election Tribunal, held, was bound by strict law of evidence which left no scope for acting in casual and summary fashion newspaper reports and poster.
‑‑‑S. 173‑‑Police report, admissibility of‑‑Police report, held, could not be admitted as evidence of correctness of facts stated there Such a report being opinion of Police Officer would only prove that same was made in a case‑‑However, as regards correctness of contents thereof, same was of no value.
‑ ‑‑‑Art. 10‑‑Past acts of individual permitted by law‑‑Such past acts, held, could not form basis for adverse view of character of individual‑‑On sis of liquor permit obtained in 1967, conclusion of such person being a drunkard or prove to commit major sins at present, being unjustified and far‑fetched, was untenable.
‑‑‑S. 2(2)‑‑P.T.D. being forged or otherwise still sub‑ judice‑‑Effect‑‑A pending matter, held, could not be prejudged in a collateral proceedings and made basis o‑r finding out character and reputation of a candidate at an election.
‑‑‑Ss. 52 & 67‑‑Election petition‑‑Declaration of election as void on basis of incomplete record of speeches‑‑Effect‑‑No party, held, could be condemned on basis of record of speeches which was neither complete nor verbatim.
‑‑‑Art. 10(f)‑‑Term "Ameen", connotation of‑‑Meaning accorded to word "Ameen" by Election Tribunal as person who obeys Allah and His Prophet in all his actions, utterances as well as beliefs, held, is quite out of place because Art. 10 of Order 5 of 1977 equally applies to non‑Muslims‑ Meanings to be given to term "Ameen" should be mundane and uniform restricted to one's dealings with fellow beings and public affairs generally.‑‑[Words and phrases].
‑‑‑Ss. 52, 67 & 68‑‑Appellate jurisdiction of Supreme Court, exercise of‑‑Disregard of rules of evidence by Election Tribunal for evaluation of character of elected candidate, being against canon of justice, Supreme Court in exercise of appellate jurisdiction set aside order of Election "Tribunal and appellant was declared to have been elected validly.
A.K. Brohi, Raja M. Anwar, Ch. M. Arif, Senior Advocates Supreme Court, M. Bilal, Qazi Khalid Iqbal, Advocate Supreme Court and Imtiaz M. Khan advocate‑on‑Record for Appellant.
Sh. Aftab Hussain, Ch. Rafiq A. Bajwa, Advocates Supreme Court and M.A. Siddiqui,
Advocate‑on‑Record for Respondent No.1.
Respondent No. 5 in Person.
Dates of hearing: 10th, 14th, 17th to 19th May, 1986.
Raja Muhammad Afzal, a duly elected candidate to the National Assembly from Constituency NA‑44 Jhelum‑1 appealed, as of right, under section 67(3) of the Representation of the Peoples Act, 1976 (hereinafter referred to as the Act) against the judgment of the Election Tribunal, dated 16‑1‑1986 whereby he was held to be not qualified to be elected or chosen as a member of the Parliament under Article 10 of the President's (Post Proclamation) Order No.5 of 1977, his election was held to be void for the corrupt practice committed with his connivance, and respondent No. 1, the Election Petitioner, was declared to be elected to the disputed seat as a member of the Parliament from Constituency NA‑44, Jhelum‑1.
The appellant and the respondents Nos 1 to 4 in all fice persons filed their nomination papers for election to National Assembly from Constituency NA-44 Jehlum-1 which was to be held on 25th February, 1985. At the time of scrutiny of the nomination papers under section 14 of the Act, the respondent No.1 objected to the nomination papers of the appellant on the grounds appearing as hereunder:-
"(a) He has been enrolled in Bundle 'B' of Police Station City Jhelum.
(b) He holds permit No. 50, dated 27‑7‑1967 of liquor. He has been addicted to liquor and as such does not qualify to be a candidate for contesting in the National Assembly.
(c) He has been involved in serious cases of fraud and is not 'Ameen' because he has defrauded the property of Municipal Committee and a case has been registered against him on this account."
The Returning Officer by his order, dated 22‑1‑1985 rejected the objections holding as follows:‑
"The allegations were rebutted by him stating that he has recently performed Umera; has been elected Member Municipal Committee Jhelum for three consecutive terms and is Chairman, Municipal Committee, Jhelum for two terms including uncontested present term. The allegation regarding being member of Bundle 'B' relates to year 1967. After that no record is there against him with the police. According to Election Rules we have to take into account the convictions/ Police record of last five years. Similarly the allegation regarding holding permit for liquor relates to the year 1967, therefore, this objection cannot be taken into consideration. As regards making fraud about the property of Municipal Committee, Jhelum, the case is still under adjudication. Therefore, no conviction or disqualification can be attributed to him on this allegation.
To my view the allegations levelled against the candidate stand fully rebutted and do not disqualify him from becoming a candidate in the National Assembly. His Nomination Papers are hereby accepted."
An appeal under section 14(5) of the Act was filed against this decision of the Returning Officer which was dismissed in limine on 23‑1‑1985 on the following grounds:‑
"Respondent has in the recent past, been a Chairman of Municipal Committee, Jhelum for two terms. He is stated to have performed Umera. May be he was put in Bundle 'B' by the Police in 1967, and that he held a liquor permit in the year 1967 but then chances of improving cannot be denied to the respondent. He has taken over a new leaf in his life. He cannot be denied a right to contest Election and face his electorate, on the basis of these allegations only. In the absence of any solid proof, the respondent cannot be held to be a disqualified person."
In the Polls held on 25‑2‑1985, the candidates were officially shown to have received votes in the following order:‑
Raja Muhammad Afzal, Appellant. 60626 votes
Ch. Muhammad Altaf Hussain,
Respondent No.1. 56153 votes
Mirza Nawazish Ali Beg,
Respondent No.5. 661 Votes
Muhammad Ismatullah,
Respondent No.4. 512 votes
Azmat Kamai Respondent No. 2. 435 votes
Ch. Muhammad Ayub Respondent No.3. 413 votes
The appellant was sworn in as a member of the National Assembly and started functioning as such..
The respondent No. 1 filed an Election Petition under section 52 of the Act on 15‑4‑1985 alleging that the appellant 'was not qualified on the day of filing of nomination papers to be elected or chosen as member of Parliament in terms of Article 10 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977' (hereinafter referred to as the Order). The sub‑clauses (d), (e) and (f) of clause (1) of Article 10 of the Order were pressed into service, and it was prayed that his lack of qualification 'may kindly be decided as Preliminary issue'. Another ground taken up was that the election was 'void as through acts of bribery, undue influence and through illegal and corrupt practices committed by or/on behalf of respondent No.1 the result of the election has materially been affected'. The relief sought by respondent No.1 on the basis of these allegations was as produced hereunder: ‑
"It is prayed that the respondent No.1 was not qualified to be elected or chosen as member of Parliament on the day of filing of nomination papers, respondent No.1's election is void ab initio; and as lack of qualifications of respondent No.1 was notorious, votes cast in his favour stand wasted; and the petitioner having obtained majority of votes be declared as duly elected from Constituency N . A .44, Jhelum‑1. In the alternative, it is prayed that since due to acts of bribery, corrupt practices, and casting of bogus votes, the result of the elections has been materially affected, the election as a whole be declared void and re‑election ordered."
As regards the appellant's lack of qualification and its notoriety, the following specific instances were provided in the petition:‑
(i) F.I.R. No. 39/65, dated 26‑5‑1965 P.S. Mirpur Azad Jammu and Kashmir under section 420, P.P.C. in which the appellant was named and remained an absconder for 16 years.
(ii) A case under section 392/396, P.P.C. was registered at P.S. Saddar Jhelum in 1965 in which the appellant was named as an accused. This case, and through it, the appellant received widespread notoriety as evidenced by copy of daily ' Tameer' Rawalpindi, dated 13‑8‑1965.
(iii) A case under section 392, P.P.C. was registered at Mirpur in 1972 against the appellant‑and his brother and it received wide publicity in newspapers particularly 'Jang', dated 19‑5‑1972.
(iv) The appellant lodged a case (F.I.R. 138/80 under section 382, P.P.C.) which was held by the High Court (1981 P Cr. L J 235) to be false and instead the appellant was charged in F.I.R. 150/80 (Police Station City Jhelum) under sections 224/225, 147/ 149, 186, P.P.C.
(v) The appellant was placed under police surveillance by 1966 'his name was included in Bundle 'B' of Bad Characters of Jhelum City Police, in 1967' and his history‑sheet was opened at the police station.
(vi) In 1971 proceedings under section 13 of the Control of Goondas Ordinance were initiated against him.
(vii) He obtained a liquor consumption permit and has been obtaining liquor consumption permits from other offices as well.
(viii) The appellant was prosecuted on F.I.R. 75, dated 11‑7‑1967, P.S. Lala Musa for being drunk and attempting forcible entry in the house of a prostitute Inayat Begum.
(ix) He fraudulently got transferred valuable Evacuee Trust Property and on the discovery of fraud and forgeries the transfer documents were ordered to be cancelled.
(x) He abused the position of Chairman, Municipal Committee, Jhelum to appropriate the local body's property for his ends.
(xi) S.H.O., Mirpur had in his report (Annexure'D') lamented about his conduct.
From these instances, it was concluded by respondent No.1 in his election petition that the appellant earned 'his livelihood by cheating, swindling and defrauding other people', that he was 'a hardened criminal since 1964' that he 'is commonly known to be an inveterate, habitual and old drunkard', 'a smuggler, swindler, cheat, god father of organized crimes particularly gambling for the last two decades'.
As regards the allegations of acts of bribery, undue influence and illegal and corrupt practices committed by or on behalf of the appellant the following specific instances were cited in the petition:‑
(i) The appellant entered into an agreement with Maulvi Muhammad Latif and Maulvi Muhammad Sharif, leaders of a religious party Khudam Ahle Sunnet, whereunder in Friday sermons on 25‑1‑1985, 1‑2‑1985, 8‑2‑1985, 15‑2‑1985 and 22‑2‑1985 the respondent No.1 was denounced as 'atheist and Munikir Qur'an or Hadees' and the congregation was called upon to vote for the appellant under threat of ex‑communication.
(ii) Shortly before the election a hand bill was circulated in Jhelum City and Dina Town inciting 'Sheikh Biradari' against the respondent No.1.
(iv) The appellant as Chairman, Municipal Committee, Jhelum, and respondent No.2 as Chairman, Zila Council, Jhelum joined hands and promised, in return for votes, to finance a 'large number of projects' in various villages.
(v) The polling staff at most of the Polling Stations in the constituency was under the influence of the appellant and respondent No.2 and on account of their influence large scale bogus votes of dead and absentee voters were allowed to be cast. The Polling Stations where large scale irregularities were committed were specked.
(vi) The counting of votes was not done properly.
As required according to the procedure prescribed (para. 1) by the Election Commission for the trial of Election Petitions the Election Petition was accompanied by the following documents and affidavits of witnesses: ‑
(i) Copy of Form XVII‑‑Result of Count‑‑NA‑44‑Jhelum‑1 Annexure 'A'.
(ii) Copy of F.I.R. 39/65, dated 25‑6‑1965 under section 420, P.P.C. P. S. Mirpur. Annexure 'B'.
(iii) Copy of Challan No. 47 in F.I.R. 39/65 P.S. Mirpur containing statements of witnesses etc. Annexure 'C' (containing documents C‑1 to C‑7) .
(iv) Affidavit of Muhammad Lal son of Nek Muhammad complainant, dated 15‑4‑1985 relating to F.I.R. 29/65. Annexure 'C‑II'.
(v) Report of S.H.O. P.S. Mirpur, dated 4‑10‑1966 on case F.I.R 39/65 P.S., Mirpur. Annexure 'D'.
(vi) Application for bail filed by appellant on 30‑11‑1981 in F.I.R. 39/65 P.S. Mirpur. Annexure 'E'.
(vii) Copy of Urdu newspaper daily 'Taameer' Rawalpindi, dated 13‑8‑1965 containing news of the crime reported at P.S. Jhelum by Muhammad Sarwar. Annexure 'F'.
(viii)Affidavit of Muhammad Sarwar, dated 15‑4‑1985 complainant in the case reported in Daily 'Taameer', dated 13‑8‑1965. Annexure 'F‑1' .
(ix) Copy of F.I.R. No.40, dated 1‑4‑1972 under section 392, P.P.C. P.S. Mirpur. Annexure 'G'.
(x) Affidavit of Malik Lal Khan son of Boots Khan complainant, dated 15‑4‑1985 concerning F.I.R. No. 40, dated 1‑4‑1972 under section 392, P.P.C. P.S. Mirpur. Annexure 'G.1'.
(xi) News item in Urdu daily 'Jang', dated 19‑5‑1972 concerning crime reported, vide F.I.R., dated 1‑4‑1972 P.S. Mirpur. Annexure 'G‑II .
(xii)Affidavit (of Nazir Ahmed), dated 15‑4‑1985 concerning a criminal case registered in May, 1971 at P.S. Jhelum against the appellant. Annexure 'G‑III'.
(xiii) Affidavit of Muhammad Nazir, dated 15‑4‑1985 complaining of victimisation at the hands of the appellant in 1968 of which no report lodged due to his threats. Annexure 'G‑IV'.
(xiv) Copy of F:I.R. No. 150, dated 7‑6‑1980 P.S. City Jhelum under sections 224, 225, 147/149, 186, P.P.C. Annexure 'H'.
(xv) Copy of question put by respondent No. 1 in Majlis Shoora and the reply thereof by the Minister concerned. Annexure 'I'.
(xvi) Copies of the Revenue record (Annexure'J‑I' to Annexure'J‑XII') relating to Evacuee Trust land in Jhelum.
(xvii) Copy of the order of D.S.C., Jhelum, dated 14‑6‑1983 in respect of evacuee trust land. Annexure 'K'.
(xviii) Affidavit of Ghulam Hasan son of Fazal Ilahi, dated 15‑4‑1985 about the ill repute of the appellant. Annexure 'K‑I.
(xix) Affidavit of Ch. Sultan Mahmood son of Ch. Muhammad Iqbal, dated 15‑4‑1985 on having attended mosque meeting addressed by Maulvi Abdul Latif and Maulvi Muhammad Sharif on 21‑2‑1985. Annexure 'L'.
(xx) Affidavit of Lal Khan son of Pahlwan Khan, dated 15‑4‑1985 about having attended and heard Maulvi Abdul Latif on Friday, 8th February, 1985. Annexure 'L‑I'.
(xxi) Pamphlet by Sheikh Bradari against respondent No.1. Annexure 'M'.
(xxii) Receipt of telegram sent on 24‑2‑1985. Annexure 'N'.
(xxiii) Affidavit of Bashir Ahmed son of Muhammad Din, dated 15‑4‑1985 about the collusion of the appellant and respondent No.2 for bribing the voters by abusing their position. Annexure 'N‑I'.
In addition, by a separate application (C.M. 4/85) filed along with the Election Petition, the respondent No.1 prayed for summoning of the Polling record and the following witnesses along with record mentioned against their names:‑
(1) Excise and Taxation Officer, Jhelum and Rawalpindi. Register of Liquor Consumption Permits relating to the year 1967 to prove that Liquor Consumption permit stands issued to Raja Muhammad Afzal. (from the year 1967 to 1977)
(2) S.H.O. Police Station City, Jhelum:
(i) Register No. 11/1966 to prove that name of respondent No.1 is entered in Bundle 'B' of bad characters, alongwith personal file of respondent No. 1.
(ii) Registers of F.I.Rs. for the years 1964 to 1980 (17 years).
(iii) History‑sheet of respondent No.1 (year 1967).
(3) District Magistrate, Jhelum:
Order, dated 16‑5‑1971‑‑to prove that proceedings under section 13, Control of Goondas' Ordinance were initiated against Raja Muhammad Afzal, respondent No.1 with the relevant filed.
(4) S.H.O. Police Station, Mirpur, A.J.K.:
(i) F.I.R. No.39/65.
(ii) Report of S.H.O., dated 31‑10‑1966 in the above case.
(iii) F.I. R. No. 40/72.
(iv) Malik Abdul Aziz, Retd. S. H.O. /Inspector, P. S. , Mirpur.
(5) S.H.O. Police Station, Lala Musa, District Gujrat:
F.I. R. No, 75/25‑7‑1967 with the register of F.I. R. for the year 1967.
(6) S. H.O. Police Station, Sadar, Jhelum: Register of F.I.Rs. years 1965‑1985.
(7) Chief Officer, Municipal Committee, Jhelum and H.V.C., D.C.'s Office Jhelum with the file of.‑
Record of Municipal Committee's ownership of property known as Bus Stand, Shandar Chowk, Jhelum (Property No.B IX‑9‑S‑1).
(8) S.H.O. Police Station, Sohawa, District Jhelum:' Register of F.I.R. for the years 1967 to 1976.
(9) Superintendent of Police, Jhelum.
Secret Diaries of Security Branch, dated 25‑1‑1985, 1‑1‑1985, 8‑2‑1985, 15‑2‑1985, 21‑2‑1985 and 22‑2‑1985 relating to Friday sermons/ meetings at Gumbadwali Masjid, Jhelum.
The respondent addressed another application for inspection of certain documents and to exercise the power of suitably amending/adding grounds, a right reserved by him in the Election Petition.
The appellant contested the Election Petition. His preliminary objections to the competence of the petition were that it was barred by res judicata in view of rejection of identical objections at the stage of scrutiny of nomination papers; and thereafter in appeal by a learned Judge in the High Court; that the Election Petitioner had not come with clean hands as he suppressed the earlier disposal of his similar objections; that the contents of the Election Petition violated provisions of section 55(a) and (b) of the Act; that the allegations 'are false, scandalous, totally baseless and have been found by the Returning Officer, whose order has been upheld by the Honourable Judge of the Lahore High Court' which made the petition liable to be dismissed in limine under section 63 of the Act. On merits he claimed as follows:
"It will not be out of place .to submit that Replying‑respondent was member of Municipal Committee, Jhelum in year 1964 when the petitioner contested election for National Assembly. The replying respondent opposed him and from that very day there is political rivalry between the petitioner and the replying respondent which has gone to the pitch in the recent election. All the allegations levelled in this petition are outcome of this background which are incorrect. The petitioner was always after the replying respondent and through his relations in Azad Kashmir he manoeuvred so many cases to be registered against the respondent. None of these cases succeeded and the petitioner was either discharged or exonerated by the relevant authorities "
He, thereafter, dealt with and explained each case registered against him. As regards the alleged forgery, and fraud in obtaining the transfer of Evacuee Trust land he stated as follows:‑
"This land was transferred by the Settlement Department to the replying‑respondent. As the petitioner was member Majlis‑e- Shoora, he manoeuvred to get an admission from the Federal Minister and the petitioner being the bona fide purchaser has all the right to sell the land. The order of cancellation was an ex parte order for which an appeal is pending before the Secretary Government of Pakistan for adjudication."
He admitted having purchased a property belonging to one Syed Abbas Shah and, at one time being used as a Bus Stand but denied being at that time a Councillor or Chairman of Municipal Committee, Jhelum, or having abused those positions.
He claimed that he had no knowledge of the utterances of Maulana Abdul Latif and that he had no connection with any hand bill of Sheikh Biradari. He denied the alleged collusion with respondent No.2 and disbursement of local fund for the purposes of contesting elections. He also denied the other alleged irregularities at the elections including the counting of votes.
He finally stated as follows:‑
"It will be submitted for the kind attention of this Honourable Court that replying‑respondent remained Councillor of the Municipal Committee, .1helum for 4 terms i.e. 21 years since 1964 and also remained Chairman of this Municipal Committee twice. A person with bad reputation cannot think to be a member and the Chairman of the Municipal Committee what to talk of becoming a member of National Assembly."
He submitted with his written statement a list of thirteen witnesses. The affidavits of only three of them were filed.
The Election Tribunal framed the following issues on 5‑10‑1985:‑
"(i) Whether the respondent No.1 was qualified to be candidate and being elected as Member of the National Assembly O.P.P.
(ii) Whether the respondent No. 1 was guilty of committing illegal and corrupt practices during the elections, as a result of which he was declared to have been elected the Member of the National Assembly O.P.P.
(iii) Whether the petition is not maintainable being barred by the principle of res judicating O .P .P.
The respondent No.1 in support of his election petition produced the following witnesses in proof of the matters indicated against each:‑
(1) Mushtaq Ahmed, Moharir Head Constable Police Station, Sadar Jhelum to exhibit copy of F.I.R. 61/65, dated 10‑8‑1965 under section 391/394, P.P.C_ (EXh.P.W.l/A). He admitted that result endorsed on the F.I.R. bras that all the accused persons were discharged on 8‑10‑1967 under section 253, Cr.P.C.
(2) Muhammad Ilyas Moharir Head Cosntable, Police Station Sohawa, District Jhelum to Exh. F.I. R. No. 1/2 under section 420/382/ 384/328/342/392, P.P.C. (Exh.P.W.2/2). The appellant was an accused in the case. He was acquitted by the Summary Military Court No.5 on 10‑3‑1971 while his co‑accused were convicted.
(3) Zafar Ali, Inspector/S.H.O. Police Station, Jhelum to prove the following F.I. Rs. from the Register:‑
(i) F.I.R. 412, dated 19‑1‑1964 under section 324/308/148, P.P.C. (Exh.P.W.3/3). It ended in compromise. The appellant was discharged in the case for 'lack of proof against him'.
(i) F.I.R. 198, dated. 21‑9‑1967, under section 307/34, P.P.C. (Exh.P.W.3/4). It ended in discharge of all the accused on 16‑12‑1972.
(iii) F.I.R. No. 138/80, dated 1‑6‑1980 under section 382, P.P.C. (Exh.P.W.3/5). This case was cancelled. The appellant was not mentioned as an accused in this case.
(iv) F.I.R. No.150, dated 7‑6‑1980 under section 224/225/147/149/186, P.P.C. (Exh.P.W.3/6). On 20‑6‑1982 all the accused including the appellant were acquitted. The record did not show the appellant to be a History‑ sheeter. He was never proceeded against under Goonda Ordinance (The Election Tribunal suspected prima facie tampering with the record/entry of History‑sheet).
(4) Muhammad Sharif, Head Constable, Special Branch, covered and recorded the proceedings of the meeting held in Masjid Gumbadwali at Jhelum (Exh.P.W.4/7) held on 21‑2‑1985.
(5) Muhammad Feroze, Constable Security Branch, covered and recorded the proceedings of meeting at Jamia Masjid Gumbadwali at Jhelum held on 25‑1‑19,85 (Exh.P.W.5/8) and on 22‑2‑1985 (Exh.P.W.5/9).
(6) Nazeer Ahmed son of Nek Alam‑‑proved his affidavit (Exh.P.W.6/10) in which he had mentioned that in year 1968 the appellant received 20, 000 for selling his car for Rs.50, 000 which he did not sell. He assaulted him and threatened him against taking any action He made no report. He sought no legal remedy.
(7) Muhammad Nawaz, Special Assistant daily 'fang' proved photo copy of daily 'Jang', dated 19‑5‑1972. He had not verified the correctness or truth of this news item personally. It was the responsibility of Younas Azam of Mirpur, the local correspondent who was alive.
(8) The respondent as his own witness.
He filed a certified copy of F.I . R . (P. W . 8/ 1) in which case appellant was declared absconder. He challenged it by means of Writ Petition (1294/65) which succeeded (Exh.P.W.8/3). He filed copy of daily Taameer (Exh.P.W.8/12) and report (EXh.P.W.8/13) made on it. He filed documents showing the History‑sheet of the appellant quashed on his Writ Petition (Exh.P.W.8/14). He produced a copy of the judgment, dated 10‑5‑1969 (Exh.P.W.8/15). The witness produced other orders and record of proceedings, all under objection with regard to admissibility and proof.
To the question 'Is it not a fact, that in all these F.I.Rs. Raja Muhammad Afzal was discharged or acquitted' he replied 'It is correct that Raja Muhammad Afzal was discharged but mainly on account of the threats given to the prosecution witnesses or through compromise'. To another question he replied 'As far as I remember, it is correct, that the action of the police under Police Rule 23.9 against Raja Muhammad Afzal was quashed by the High Court sometime in the year 1970. To yet another question he replied 'To my knowledge during 4/5 years no criminal case has been registered against Raja Muhammad Afzal'.
Not only as and when these witnesses were examined and the documents exhibited that objections to their admissibility and production were taken and grounds therefore were disclosed but some find mention in the order sheet also. As for example on 19‑11‑1985 following objection is recorded in the order sheet:‑
"Messrs Raja Muhammad Anwar and Mr. Muhammad Arif, Advocates seriously object to the production and acceptance of those documents which were not relied upon earlier by the petitioner. It is further submitted by the learned Advocates, that these documents were not even produced before and had not been mentioned in the list of documents along with the petition. The objection has been noted. It is further submitted, that the documentary evidence led by the petitioner today consists of new ground and new incidents, which were not here to before mentioned in the election petition. The objection has been noted and will be decided at the time of the final hearing. I hereby direct Mr. Rafique Ahmed Bajwa, Advocate to supply all the copies of these documents to Raja Muhammad Anwar, Advocate, so as to enable him to cross‑examine the petitioner before 4 o'clock. "
Sultan Muhammad and Muhammad Lal, the two witnesses whose affidavits had been filed regarding the utterances of the Maulvis in the congregations were not produced by the respondent and were given up.
In rebuttal, the appellant produced the following witnesses to prove the facts noted against each:‑
(1) Raja Ahmed Khan, Advocate who claims to have known the appellant for 25/30 years, as one enjoying good reputation as a Pacca Musalman, and is President of Anujuman Darul Uloom Ahle Sunnat. He was not aware of any criminal cases registered against him.
(2) Raja Fayyaz Asif, Advocate, who claims to have known the appellant for the last 20/25 years as enjoying good reputation, offering his prayers as a true Muslim and one having performed 'Umra'. He claimed to have attended the mosque congregations.
(3) Ch. Imtiaz Ahmed, Advocate who claims to have known the appellant for 18/20 years, as one enjoying good reputation as a true Muslim. He is not aware of the criminal cases registered against the appellant.
(4) Raja Muhammad Afzal as his own witness. He explained the background and the result of every criminal case/proceeding against him. He admitted having obtained liquor permit in 1967 on medical grounds.
At the conclusion of elaborate arguments by the parties, extending over six days, the learned Election Tribunal by a short order reproduced hereunder allowed the Election Petition:‑
"After hearing the learned counsels at length, for reasons to be recorded later, I hold that the respondent Raja Muhammad Afzal the returned candidate was disqualified from being elected as member of the National Assembly because of the disqualification contained in Article 10 of the P.O. 5 of 1977.
Thus, I further hold that the election of the respondent to be void, and I further declare the petitioner to have been elected, because the votes cast in favour of the respondent are considered to have been wasted, because the disqualification of the respondent was glaring and obvious, and the voters had deliberately cast their votes in favour of the respondent."
In the reasons recorded, Article 10, sub‑Article (1), clauses (d) to (f) invoked by the respondent was reproduced and thereafter an observation made that 'for the interpretation of this Article‑ and its various clauses the golden rule governing the interpretation of law i. e. to unearth the intention of the Legislature has to be followed' and then that 'I cannot close my eyes from the past political events resulting into the imposition of Martial Law in 1958, 1989 and 1977 because of the utter failure to evolve a system of self‑rule'. Looking in retrospect, the learned Election Tribunal observed, 'The history reveals, that it was on account of return to Islam, that enabled the Great Aurangzeb Alamgir to lead the Mughal Empire to its pinnacle', noted the degeneration and exploitation followed by creation oaf Pakistan 'not a mere accident of history but the culmination of a process founded upon the fundamental principles of Islam'. Apart from the Preamble of the Order the history of the legislation was also looked into, the Islamization process in the country was analysed, the recommendations of the council of Islamic Ideology, the committees formed by the Masjda‑e‑Shoora, the injunctions of the Holy Qur'an on the subject, were all examined to record the following conclusion:‑
"A careful consideration of the above referred Ayets proves beyond any doubt that the framers of Article 10 of the President's (Post‑Proclamation) Order No.5, 1977, have incorporated the above‑mentioned fundamentals prescribed by the Holy Book as a condition precedent for offering one into the process of election."
As to whether the provisions of Article 10 of the Order should be construed strictly or liberally the learned Election Tribunal observed as hereunder:‑
"The next question falling for determination is whether the provisions of Article 10 are to be strictly construed or to be relaxed. After anxious consideration I am of the view that the provisions of Article 10 of President's (Post‑Proclamation) Order No. 5, 1977, are mandatory because the provisions are the reproduction of the fundamentals of Islam laid down in the Holy Book and, therefore, these cannot be relaxed or ignored. It is the bounden duty of every Muslim to give effect to every word of the Holy Book. Relaxation or oversight of the principles laid down in Article 10 of the President's (Post‑Proclamation) Order No.5, 1977, would reduce the system into a farce and such relaxation would be opposed to the injunctions of Islam."
The learned Tribunal, having so laid down the parameters proceeded to examine the conduct, character and general reputation of the respondent in the light of clauses (d) to (f) of Article 10 of the Order. The First Information Reports lodged at the police stations implicating the appellant were all reproduced in extenso, each separately, in all, about eight of them. The two newspapers reports of daily 'Taameer' (P.W.8/12) relatable to F.I.R. 61/65 (P.W.1/A) and of daily 'Jang' relatable to F.I. R. P.W.8/19 were also reproduced. A report under section 173, Cr.P.C. (P.W.8/4) alongwith its enclosures containing the statement of witnesses was also taken note of though none of the persons concerned, the maker of the report or of the statement was produced at the trial. Another report (P. W.8/13) of the S. H.O. having the same characteristic was extensively quoted. The fact of appellant's obtaining liquor permit in 1967 on medical grounds was dealt with by the election tribunal in the following words:‑
"The perusal of the statement of the respondent would establish that his explanation on the issue of obtaining a permit for the consumption of liquor is a naked lie. The respondent invented a pretext so as to justify the possession of liquor consumption permit. As far as Injunctions of Islam are concerned the consumption of liquor on any ground whatsoever is forbidden. It is common knowledge that before the imposition of total prohibition in the year 1977, people addicted to liquor would keep a permit with them to avoid proceedings under the Excise Act. If in fact the respondent obtained the liquor permit only on medical grounds, then how can he explain, his apprehension in a drunken state at 2‑00 a.m. along with his companion Sarwar when he had tried to forcibly open the door of the house of a prostitute at Lalamusa. I am of the view that the explanation offered by the respondent is nothing but a lame excuse and attempt to conceal the commission of a major sin."
Thereafter, the case of Evacuee Trust Property and the forgeries and fraud connected with its transfer were considered alongwith the Minister's reply in Majlis‑e‑Shoora. The Election Tribunal found the stand of the appellant 'in the written statement and the other documentary evidence inconsistent with each other'. The Tribunal also found the appellant 'a liar and has been deliberately suppressing the truth by approbating and reprobating'. The newspaper reports were admitted in evidence on the strength of decisions in Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1976 SC 57 and Sher Muhammad v. Crown PLD 1949 Lah. 511.
The Election Tribunal examined the Special Branch reports on speeches/ sermons of the two Maulvis in the mosuqe, considered them admissible and concluded from them that 'these reports prove at least one thing that the reputation of the respondent even during the elections was that he was a drunkard and womanizer and the Qaris and Khatibs, who were supporting him could not get out of his 'known to ail' 'reputation'. The acquittals and the discharge orders of the appellant recorded in different cases registered against him were viewed in the light of following standard:‑
"This is the proper stage to take judicial notice of the event: happening around us. Influence, money, desperate character o1 the accused, involved has in many cases deterred the witnesses to come forward for supporting the prosecution case."
After fixing the meaning of 'good character' and 'commonly known the Tribunal recorded the following conclusions:‑
"Judged in the light of these definitions and in view of the overwhelming evidence on the record, I have no hesitation to hold that both the character as well as the reputation of the respondent, which have been manifested make him to squarely fall within the mischief of Article 10 of the President's (Post Proclamation) Order No.45 of 1977. The news item it Daily 'Taameer' Exh.P.W.8/12 and in 'Jang' Exh.P.W.7/1 speak foe itself. The respondent having been declared as proclaimed offender in two cases, is another piece of evidence to hold so. The commission of dacoity and a tendency to cheat is evident from the material brought on the record, which renders hint disqualified to be elected or chosen as a member of the Parliament.
The notoriety of the respondent can be judged by the fact, of 004that even in the mosque congregations, the Khatib and the Imam branded him as a drunkard and womaniser. The document,, Exh. P.W.4/19, a report under section 173, Cr.P.C. is admission of the guilt by the respondent for having paid o the complainant Rs 30,000 which he road snatched by show of force.
Obviously this amount was paid by the respondent to the complainant to hush up the case. This was done in 1982 and most probably at a point off time when the respondent had had entered into public life and desired to contest the elections under the Punjab Local Government Ordinance, 1979.
Having discussed and understood the meanings of these terms I have pondered over the image of the respondent in the light of his past conduct and activity. I am constrained to hold that he is commonly known as a person, who violates the Islamic Injunctions inasmuch as his reputation is that of a drunkard and a person who had been committing crimes including one under section 392 of the Pakistan Penal Code for which offence the Holy Quran has prescribed punishment. That is why such offence under the Hudood Ordinance is liable to Hadd and is known as Harabah."
The Election Tribunal examined and fixed the meaning of words 'Sagacious', righteous, profligate and honest clause (f) Article 10(1) of the Order). It came to the conclusion that the word 'Ameen' has been borrowed from the Holy Book and has an extended, all comprehensive meaning. Applying these tests to the appellant it recorded the conclusions as hereunder:‑
"Regardless of the legal effect of the quashment of the history‑ sheet by the High Court and the intention of the authorities not to proceed against him under the Goonda Ordinance coupled with his notoriety as portrayed in the news items in Daily 'Jang' anti Daily 'Taameer', Exhs. P.W. 7/1 and P.W. 8/12 respectively leads me to believe beyond any doubt that the respondent was not a fit person to have been qualified to be elected or chosen as member of the Parliament in the light of Article 10 of the President's (Post‑Proclamation) Order No.5 of 1977. It is further pertinent to mention that he admitted to have been drinking and had also obtained a permit for the consumption of liquor. The explanation offered by the respondent on this score is most perfunctory and unsatisfactory.
The notoriety of the respondent as drunkard and womaniser was mentioned by the Khatib and Imam of the mosques in Juma congregations, while advising people to vote for the respondent, because in the view of the said Qari and Khatib a drunkard and the womanizer had to take preference over a person, like the petitioner, who was maligned as 'Munker‑e‑Qur'an' because in his capacity as member of the Majlis‑e‑Shoora he had advocated the framing of such laws, which according to, the Khatib and Qari were against Islam."
The appellant was held to be not an Ameen.
As regards the plea of res judicata it was held by reference to a aeries of decisions in the field, that the finality did not prevent a reconsideration of the same grounds in an election petition by the Tribunal.
On the objections to the admissibility of evidence the following remarks were finally made:‑
"At the time of the recording of evidence, both sides, raised objections as to the admissibility of certain items of evidence in the light of rules of procedure framed by the Election Commission but during the course of arguments, neither side pressed these objections. Therefore, the same will be deemed to have been waived."
Dealing next with the corrupt and illegal practice, the Tribunal held as follows:‑
"These speeches in a place of worship undoubtedly establish that these were made with the connivance and at the behest of the respondent. In rebuttal no evidence was led ors behalf of the respondent to belie it. I am, therefore, convinced that the respondent had secured his success in the election through corrupt practice. The mischief is covered by section 3(a) of section 78 ref the Representation of Peoples Act, 1976. The election of the respondent is further hit by the provision of clauses (b), (c) and (d) of subsection (1) of section 81 of the Representation of the Peoples Act, 1976, and also by clause (a) of subsection (3) of section 81 of the Representation of Peoples Act, 1976.
Khatib and Qari of a mosque are undoubtedly considered as spiritual leaders in the society."
The Tribunal thereafter proceeded to grant relief as hereunder:‑
"The petitioner has prayed that since he secured next highest votes in the elections, therefore, he be declared to have been gel elected to the disputed seat (N.A.44 Jhelum‑I). I am inclined to declare so, because the disqualification in the form of notoriety of the respondent was obvious and known, hence votes cast in his favour would be deemed to have been wasted.
Accordingly I hereby declare that the Election of the respondent was void on account of his non‑qualification and the corrupt practice committed by him and, therefore, I declare the petitioner to have been elected to the disputed seat as a member of the Parliament from Constituency N.A. 44‑Jhelum‑I.
Mr. A. K. Brohi, the learned counsel for the appellant has taken up the following grounds for challenging the decision‑of the Election Tribunal:‑
(i) The short order of the Tribunal, dated 18‑1‑1986 contains only one ground for holding the election of the appellant to be void. It is his personal disqualification under Article 10 of the Order. The reasons recorded for the short order, in so far as they add another ground of corrupt and illegal practice in the form of undue influence and connivance of the appellant, should, therefore, be altogether ignored, being in excess and beyond the scope of short order which is in fact and in law the effective order, the subsequent one being only the reasons therefore.
(ii) Decision on objections to be 'admissibility of certain documents and evidence was deferred by the Tribunal. The appellant at no stage, waived or abandoned these objections. The Tribunal has incorrectly observed 'that the objections taken by the appellant to the admissibility of documents was not reiterated at the time of the arguments.
(iii) The First Information Reports which had all ended in acquittal or discharge, and in some in which the appellant was not named at ail, were treated as substantive evidence and inferences adverse to the appellant were drawn against all norms of justice and fairness.
(iv) Except for producing evidence of isolated incidents based on, or arising out of the First Information Report, no evidence about the character of the appellant as such was provided. The appellant's evidence on character was not noted and considered by the Election Tribunal.
(v) The liquor permit when obtained was in accordance with law on grounds then recognised by law. The standards and the law now in force should not have been adopted for testing the justification and propriety. Besides, the Tribunal could not have rejected the explanation of the appellant on the basis of facts disclosed in a case in which the" appellant stood acquitted, and those facts alleged were held not proved against the appellant.
(vi) The language of Article 10, clauses (d), (e), (f) uses the word 'is' which is a term of historical present, thereby excluding altogether facts and events not having the necessary nexus in time frame. The Tribunal in ignoring this aspect of the law, and relying on events all of which are of period 1965 to 1980 and none thereafter, misdirected itself and reached a conclusion unwarranted by law. The Tribunal has taken a view which makes the provisions of Article 10 (2) (b) (1) and (5) anamolous, incongruous and out of place.
(vii) Not the words 'sagacious', 'righteous', 'profligate', had to be individually dealt with, their meaning traced and applied but the entire effect of the sub‑clauses (d), (e) and (f), 'ensemble had to be seen and applied, 'Character according to these clauses has the meaning of reputation because as indicated in the statute itself in the case of non‑Muslim the whole of clause (d) stands substituted by 'good moral reputation'. Section 78 subsection (3), clause (a) of the representation of the Peoples Act, 1976 defining the corrupt practice distinguishes 'character' from 'personal character'. Explanation to section 55 of the Evidence Act provides that the word 'character' includes both reputation and disposition and also that except as provided in section 54 evidence may be given only of general reputation and general disposition and not of particular acts.
For this reason reference to individual instances was out of place and could not serve the purpose of proving the character or reputation.
(viii) The high degree of evidence required in disqualifying a returned candidate has been spelt out with clarity and exhaustively in Muhammad Saeed v. Election Petition Tribunal P L D 1957 SC 91 and that standard of proof was not supplied by the respondent election petitioner.
(ix) The presumption of innocence of an accused facing trial continues from the commencement and remains unaffected throughout. His acquittal cannot diminish or sully that presumption of innocence. In this case in spite of the acquittals and the discharge orders admittedly recorded in all the cases of which the First Information Reports were noted the appellant was held by the tribunal to be culpably involved in all those cases so as to tarnish his character and reputation beyond redemption. The newspaper reports from daily 'Taameer' and daily 'fang' were inadmissible in evidence because both related to individual First Information Reports which had been ‑judicially scrutinised and found to be without substance. Further the makers of those reports though admittedly alive and available were not produced and no satisfactory reason was given for not producing them.
(x) The three secret' reports relating to the proceedings of the meetings inside the mosque themselves show that it is a bare outline record of what was uttered. It is neither full nor correct reproduction of the utterance. It is selective and short. From these reports no inference could be drawn with regard to the corrupt practice or undue influence. The appellant in any case was not involved in it and the inference drawn with regard to connivance on. his part is highly conjectural and a leap in intellectual exercise for which there exists neither material nor reason or logic.
(xi) The matter with regard to the disposal of Evacuee Trust land was still sub judice before the competent authority, namely the Chairman, Evacuee Trust Board. The Deputy Settlement Commissioner who granted the P.T.D. or the one who cancelled the P.T.D. had no jurisdiction if the land as contended by both the parties was evacuee trust land. His exercise of intermeddling with the affairs is completely without jurisdiction and no reference or reliance can be placed on it as the matter is still to be gone into by the competent authority.
(xii) As regards the procedure adopted by the respondent, it has been contended that with regard to the mosque speeches, the respondent had filed the affidavits of two persons, namely, Sultan and Lal Muhammad. The rule of procedure prescribed by the Election Commission under section 62 of the Representation of Peoples Act, 1976 provided that 'the petitioner shall make available for cross‑examination all witnesses whose affidavits are filed with the petition for cross‑examination on the first date of hearing before the Tribunal. When the appellant asked for their presence for cross‑examination the respondent gave up all his witnesses including Sultan and Lal Muhammad thereby depriving the appellant the right of cross‑examination of these witnesses. The necessary presumption that if they were produced they would have stated against the case set out by the appellant should have been drawn in the case.
(xiii) It could not be taken to be a case of throw away votes because the appellant was already holding elected office for the past eight years and had been adjudged to be not lacking in qualification when the scrutiny of the nomination paper took place and thereafter, on appeal by a High Court Judge. His disqualification or lack of qualification in this background could not be considered to be notorious so as to lead to the inference that the votes cast in his favour were thrown away and the respondent No.1 must be declared elected on his election being set aside as void.
Sh. Aftab Hussain, Advocate, the learned counsel appearing for the respondent No.1 has in support of the order of the Election Tribunal and in reply to the arguments of the learned counsel for the appellant advanced the following grounds:‑
(i) As the clauses (d), (e) and (f) of Article 10, sub‑Article (1) provide for the qualification of the candidate once it became an issue whether he was possessed of it or not it was primarily for the appellant to satisfy the Tribunal and the authorities that he was possessed of the necessary qualification to stand as a candidate and to be a member of the National Assembly. He has failed to discharge the onus which heavily lay on him.
(ii) Even if the high standard of evidence as required in a criminal trial is insisted upon for disqualifying an elected candidate, the requirement of these sub‑clauses namely of character, reputation and moral and intellectual qualities of sagacity, righteousness and absence of profligacy are such that the evidence which is receivable in character proceedings and the like of it under sections 109 and 110 of the Criminal Procedure Code can be led for establishing the disposition, the character and the habits of the appellant. It was led and satisfactorily established.
(iii) The First Information Reports and the newspaper reports are not, even according to the respondent, substantive piece of evidence but the fact that such reports were lodged and such serious allegations were made against the appellant can be proved by such reports and comments appearing in the newspapers. The large number of such reports, the diversity of the places and of the individuals making the reports had the cumulative effect of establishing the general reputation and character of the appellant by their mere number, diversity and gravity of the offences mentioned therein. The consumption of liquor on medical grounds which could not stand closer scrutiny was itself, along with the other factors already brought on the record, sufficient to establish that the sanctity of the injunctions of Islam was lacking in the mind and attitude of the appellant.
(iv) The long period covered by such reports and instances, from 1964 to 1981 at least a presumption arose under section 114, clause (d) of the Evidence Act in favour of their continuance and immutability and has not been dislodged by the appellant by showing a volteface or remarkable change for the better.
(v) The proceedings conducted by the Deputy Settlement Commissioner with regard to the Evacuee Trust land did show, notwithstanding the pendency of the matter, that forgeries and fraud had been committed for the benefit and keeping in view his antecedent, at the instance of the appellant himself. The subsequent dealings by the appellant with this land when he had admitted that this was evacuee trust land will show that he was not an 'Ameen' as the word 'Ameen' as contained in clause (f) has an extended meaning as appearing in the Holy Book and totality of the character of an individual in meeting his obligations to God as well as to his fellow‑beings is intended. The appellant did not satisfy this requirement of law.
(vi) Undoubtedly the history‑sheet opened at the police station was quashed on a constitutional petition filed by the appellant. His name in the surveillance register continued to remain and it could, independently of the quashment of the history‑sheet to show that he was a suspect in the locality where he resided.
(vii) The Special Reports on the meeting in the mosque were made by the official functionaries in discharge of their duties and contained a sufficiently accurate actionable record of what transpired there. it clearly established that while condemning respondent No.1 or. extraneous considerations the character and reputation of the appellant was also adversely projected. The religious sanctions were imposed against those voting against him. This established corrupt practice and as laid down in Halsbury 3rd edition Vol. 14 paras. 173, 169 and 303 the Maulvis canvassing were to be treated as agents of the appellant.
Apart from these two contestants, at the stage of appeal respondent No.5 has appeared in person and has filed objections under Order XII, Rule 5 of the Supreme Court Rules. His contention now is that both the contestants lacked the qualification on the nomination day for being elected as a member of the Parliament. The reasons given for this submission in respect of the appellant, is according to him, the order of the Tribunal itself which he supports and according to which the appellant was not at all qualified to be a member of the Parliament. As regards the respondent No.1, it is alleged that some of his proposers did not belong to Constituency No.44. His nomination paper was stolen and the names of proposers changed and an F.I.R. in this matter was registered but notwithstanding that he was declared qualified to contest the election. Both the contestants, according to the respondent No.5 indulged in acts of bribery, undue influence, illegal and corrupt practices which materially affected the result of the elections. He gave particulars and instances to support this submission. Finally, he has prayed that 'the appellant and the respondent No.1 both had committed breaches of law so both must be disqualified, and the answering‑respondent be declared as the elected , candidate 'who has played a very neat and clean game of politics as per law because there is no match between the law‑breaker and law‑maker'.
As respondent No.5 had not appeared before the Election Tribunal to contest the proceedings, nor filed any reply to the petition and remained un represented throughout the proceedings before the Election Tribunal the factual aspect of his submissions cannot be taken note of or dealt with except in so far as it gets adjudicated in the contest between the appellant and respondent No.1. On the legal aspect he has nothing much to say except to support the decision of the Tribunal against the appellant, and the case of the appellant against respondent No. 1.
Before taking up the specific points of law and fact dealt with in the judgment it is necessary to deal with some general questions arising during the course of arguments and these are as follows:‑
(1) The variance between the short order and the reasons therefore:
The Short Order which was written and pronounced at the conclusion of the hearing in the presence of the parties on the 16th of January, 1986 has already been reproduced in extenso. Section 62 of the Representation of the Peoples Act, 1976 was amended by Ordinance No.18 of 1985 and it was provided that 'subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission'. Prior to this amendment, the same section provided that 'subject to the provisions of this Act and the rules every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of suits under the Code of Civil Procedure 1908'. There were then three provisions which are not relevant at this stage. Section 64 which remains un amended in substance provides 'the Tribunal shall have all the powers of civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908) and shall be deemed to be a civil Court within the meaning of sections 476, 48, 482 of the, Criminal Procedure Code, 1898 (Act V of 1898).
'Judgment' has been defined in section 2, clause 4 (9) of the Civil Procedure Code as 'judgment' means the statement given by the Judge of the grounds of a decree or order' and Order has been defined in clause 14 of the same section as 'formal expression of any decision of a civil Court which is not a decree'. Further, Order XX, Rule 4, sub‑rule (2) prescribes that judgment of Courts other that the Court of a small causes 'shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision'. Rule 5 of the same Order provides 'in suits in which issues have been framed the Court shall state its finding or decision with reasons therefore upon each separate issue, unless the finding upon anyone or more of the issues is sufficient for the decision of the suit.
Section 67 of the Representation of Peoples Act provides as follow s : ‑
"67. Decision of the Tribunal.‑‑.
(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order:‑
(e) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) Save as provided in subsection (3), the decision of a Tribunal on an election petition shall be final.
(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final.
Explanation.‑‑ In this subsection, 'decision of the Tribunal' shall not be deemed to include an order made by the Commission in the exercise of its powers under Article 13 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 197 ."
The order of the Tribunal, dated 16th of January, 1986 conforms to the requirement of section 67 in so far as it records a decision under clause (c), subsection (1) of section 67 in favour of the election petitioner i.e. respondent No.1. It was signed and properly announced. Even in the absence of reasons and the law or grounds for the decision, in its bare bones the short order incorporating whet is provided in clause (c) could satisfy the requirements of the law. The law need not have been cited. The grounds need have been indicated in it. If a provision of the law, or a ground of decision was mentioned, it could not be argued that it was exhaustive of the law or the grounds. This was particularly so because there was a reservation in the short order itself that detailed reasons will follow. The detailed reasons necessarily include the law and the grounds on which the decision is founded, apart from the reasons appearing from the case set out by the parties.
A submission recorded in the memorandum of appeal but not urged at the hearing is that the Election Tribunal was possessed of no power, being persona designata, to pronounce a short order and follow it up by detailed reasons to be recorded later. Such a practice, according to the memorandum of appeal could be adopted only by the Presiding Officer as a Judge of the High Court and not as a Presiding Officer of the Election Tribunal. As this ground has not been urged during the course of arguments, we do not propose to deal with it.
We are clear that the Tribunal did not exceed its powers or jurisdiction in disposing of the petition by a short order in a manner that it did. Now that the detailed reasons are available the two have to be read together in order to complete the judgment as such.
(2) Finality of an order passed under subsection (5) of section 4(14) of the Act (at the stage of scrutiny of the nomination papers.
The contention of the learned counsel for the appellant was that the Legislature does not waste its words nor indulges in redundancy. When the law provides that an appeal against the decision of the Returning Officer shall be referred to a Judge of the High Court who shall summarily decide it within such time as‑may be notified by the Commission and 'any order passed thereon shall be final, the implication is obvious'. It will be conclusive between the parties, not liable to be challenged in any other forum or proceedings.
The word 'final' has been defined in Black's Law Dictionary as 'last', 'conclusive', 'terminating', 'completed'. It further mentions that 'in its use in jurisprudence this word is generally contrasted with interlocutory'. Since 1958 at least, this question of finality in Election matters has come up to this Court in numerous cases and the sum and substance of all these decisions broadly stated, is that where express authorization exists in favour of two authorities or forums in respect of identical subject the one conferred by superior law prevails over that conferred by inferior law, the judicial adjudication prevails over the executive or administrative determination, the more plenary adjudication prevails over the one which is summary within procedure or in effect. In Imtiaz Ali v. Ghulam Muhammad Butt and others P L D 1958 SC 228 the finality of Electoral Roll was accepted but nowhere the question of personal disqualification of the candidate himself was in issue. In Sirajul Islam Khan v. Ahsan Ali Mondal P L D 1969 SC 5 the finality of an Electoral Roll was considered sacred so far as the eligibility of a voter was concerned but nowhere the eligibility to be a candidate at an election was in issue. Similar is the law laid down in Umar Daraz Khan v. Muhammad Yousaf and others 1968 S C M R 880, Ghulam Younas Khawaja v. Malik Faizullah and another 1969 S C M R 183. In Mukhtar Hussain Shah v. Nasim Sajjad P L D 1986 SC 178 finality of an order of appeal passed under section 13(5) of the Senate (Election) Act, 1975 was held not to bar the trial of an Election Petition under section 52 of the Act. The finality of an appellate order under rule 16(1) of the Punjab Local Council Election Rules was held in the case of Emmanual Masih v. Punjab Local Councils Election Authority and others 1985 S C M R 729 not to bar an Election Petition under section 24 of the Punjab Local Government Ordinance.
Article 14 of the Order provides 'save as provided in Article 13, no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as is provided for in the Representation of the Peoples Act, 1976 (LXXXV of 1976)'.
Article 16 of the Order has a non obtante clause (xx) in the following words: ‑
"16. Laws relating to election, etc. to apply.‑‑ Notwithstanding anything contained in the Constitution, the Senate (Members from Federal Capital) Order, 1973 (P.O. No.12 of 1973), the Electoral Rolls Act, 1974 (XXI of 1973), the Delimitation of Constituencies Act, 1974 (XXXIV of 1974), the Preparation of Electoral Rolls (Federally Administered Tribal Areas) Order, 1975 (P.O. No.1 of 1975), the Senate (Election) Act, 1975 (LI of 1975), and the Representation of the Peoples Act, 1976 (LXXXV of 1976), and any rules made there under, as for the time being in force, shall in so far as they are not inconsistent with any of the provisions of this Order, apply to the preparation and revision of the electoral rolls, the delimitation of constituencies, the choosing of a member from the Federal Capital and to the conduct of election to the two Houses and the Provincial Assemblies."
Subsection (1) of section 68 of the Representation of the Peoples Act, 1976 provides as follows:‑
"Ground for declaring election of returned candidate void.‑‑ (1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:‑
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or
(c) the election of the returned candidate has been procured or inducted by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent."
Keeping in view these provisions of law, it is clear that al challenge to an election is possible only through an election petition triable by a Tribunal established for that purpose and that it is within the powers of the Tribunal to determine whether the returned candidate was or was not on the nomination day qualified for or was disqualified from being elected as a Member. In view of such a scheme of the law, the finality referred to and made the basis of the argument by the learned counsel for the appellant could not stand in the way or be a bar to the jurisdiction and powers of the Election Tribunal.
There is another indicator in subsection (5) of section 14 of the Act that finality could not be attached qua the election tribunal to such a decision. The inquiry at the stage of scrutiny of nomination paper and the hearing of the appeal against the acceptance of the nomination paper is summary and the decision is to be within such time as may be notified by the Commission. With these drawbacks in handling the appeal and in disposing it of when a more elaborate and complete procedure for the trial of the same issue is provided before the Election Tribunal after the returned candidate has been notified, such a summary inquiry could not bar the more elaborate inquiry provided for in Chapter VII of the Representation of the Peoples Act.
3. The nature and standard of proof required.
The learned counsel for the appellant contended that the question of qualification and disqualification of a candidate and the commission of corrupt, illegal practice by him at the election required strict proof comparable to that accepted at a criminal trial. In support reliance has been placed on the decisions of this Court in Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and 3 others PLD 1957 S C (Pak) 91, Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others P L D 1973 S C 160, Syed Saeed Hassan v. Pyar Ali and 7 others P L D 1976 S C 6.
The learned counsel for the respondent has on the other hand contended that as the question of qualification or disqualification involves a decision with regard to the character of the candidate and his reputation, even if the standard of criminal trial is applied the one more relevant to the exercise is that which is prescribed for proceedings under Chapter VII, Part IV (as revised) of the Code of Criminal Procedure. Even a strong suspicion with regard to a tendency on the part of the individual to commit offence as evidenced by his involvement in various cases though he might have been acquitted or discharged in all of them should be sufficient for taking action against him for disqualifying him. In support of this proposition the learned counsel for the respondent No. 1 has cited a number of decisions and these are Ramzan Ali v. The State P L D 1967 S C 545, Abdul Rasheed alias Sheedu v. The State 1983 P Cr. L J 1091, Muhammad Yousaf Azad v. Tribunal Constituted under Sind Crimes Control Ordinance and another 1982 P Cr. L J 275, Muhammad Iqbal and another v. The Municipal Committee, Nankana Sahib P L D 1973 Notes 95 at p. 145, Qasim and 2 others v. The State P L D 1971 Kar. 473, Siddiqullah alias Siddique v. The State 1970 P Cr. L J 1269, Hubdar All v. Emperor A I R 1933 Oudh 251, Gudri Khatik v. Emperor A I R 1923 All. 595, Jai Singh v. Emperor A I R 1930 Oudh 357. Reliance has also been placed on Law of Evidence of Woodroffe and Amir Ali Commentary section 55 where an observation occurs that in connection with character evidence forming the basis of Badmashi sections evidence of suspicion, be it suspicion by police or suspicion by a member of the public is regarded as a good piece of evidence to show the habit and disposition of a man".
There is no such identity in the matter of requirement of evidence or standard of proof, between provisions of sections 109 to 119 of the Cr.P.C. and section 10(1), clauses (d), (e) and (f) of the Order, as has been suggested by the learned counsel for the respondent No. 1. The identity between them is only this much that character is in both made under this substantive law a fact in issue, not as evidential of the doing of an act nor as affecting notice or belief. It is the substantive law, therefore, which lays down in each case the relevancy, the standard of proof and the weight to be given to such evidence. In the first place the proceedings under sections 109 to 119, Cr.P.C. have been always considered as directed towards preventive action. This is so is borne out by the fact that these sections are found in Part IV of the Cr.P.C. which deals with prevention of offences. Both sections 109 and 110, Cr. P. C . provide for security for good behaviour in one case from vagrants and suspected persons and in the other from habitual offenders. The other feature of this security proceedings is that apart from the presence of jurisdictional facts, a mere bona fide suspicion about their presence is sufficient to warrant action. This fact has been made clearer in Law of Evidence Woodroffe and Amirali's Vol. 2 at p. 1454 and p. 1455 in the words that follow‑‑
"In connection with character, forming the basis of the Badmashi sections, evidence of suspicion, be it 'suspicion by police' or 'suspicion by the member of the public', is regarded as a good piece of evidence to show the habit and disposition of a man. This evidence along with other evidence may be the basis of an order in a case under section 110, Cr.P.C ..The word 'suspicion' means in this connection nothing more nor less than subjective impressions based upon personal knowledge of the existence of something evil or wrong or hurtful as contradistinguished from precise knowledge of demonstrable and provable facts based upon clear evidence. Therefore, evidence of suspicion is subject to all the limitations of this class of evidence. Bacon has said: 'Suspicions among' thoughts, are like bats among birds, they ever fly by twilight'. 'Many mischievous are daily at work to make men of merit suspicious of each other". Nature itself after it has done an injury will ever be suspicious; and no man can love the person he suspects. 'Suspicions always haunt the guilty mind. The thief doth fear each bush and officer'. 'And of though wisdom wakes, suspicion sleeps. At wisdom's gate and to simplicity, Reigns her charge while goodness thinks no ill, where no ill seems."
In Muhammad Saeed's case the law on the subject was summarised in the following words‑‑
"The law relating to the trial of elections petitions, though volumes have been written on it, in so far as it is relevant to the present case, is so simple that it can be summed up in one sentence, namely, that where an election is sought to be set aside on the ground of commission of corrupt practices the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges of instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioner before finding a corrupt practice proved must exclude all reasonable hypothesis which are consistent, with that corrupt practice having not been committed."
In Muhammad Yusuf Khan Khattak's case also it was held that "the law of election requires a strict proof of disqualification of a candidate as a corrupt practice and a finding with regard to disqualification must be based on positive evidence and not inferentially on mere surmises.
In the case of Syed Saeed Hassan it was held that "the analogy of a criminal trial or illegal practice which must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non- commission of a corrupt practice and the benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged".
From a comparison of the substantive laws, it is clear that proof of suspicion in one yields to the proof of a fact in the other, preventive action in one yields to impairment of a right of franchise created under the law in the other. The quality, the weight and the manner of proof cannot be identical in the two proceedings. The cases relied upon by the learned counsel for the respondent are not, therefore, very relevant in the context.
4. Evidentiary value of First Information Reports and entries contained in Police Registers.
The following comments contained in Woodroffe and Amirali's on section 60 of the Evidence Act are reproduced hereunder‑‑
"Evidence of a statement made to a witness by a person who is not himself called as a witness, will be hearsay and inadmissible, when the object of the evidence is to establish what is contained in the statement. It is not hearsay, and is admissible, when it is proposed to establish by the evidence, not the truth of the statement but the fact that it had been made. Hence, where an informant of the first information report had died before he could be examined as a witness, the evidence of the witness who recorded the report is inadmissible to prove that a certain person was in fact present at the time of the occurrence; but the statement is admissible to prove that the informant had mentioned his name to him. Press reports are not substantive evidence of the statements made and, as such, are inadmissible." In Monir's commentary on the Evidence Act while dealing with section 8 of the Evidence Act with regard to relevancy of facts, the following comments have been made:‑‑
"The first information report is admissible under this section as evidence of part of the conduct of the person making it . . . . . . . . . The first information report is not a substantive piece of evidence. It can be used either for corroboration or for contradiction of the maker of the statement, but not, if the maker is dead."
While analysing section 156 of the Evidence Act (ibid) the following comments have been made:‑‑
"The first information report 'is the statement of the maker of the report at a police station, officer, recorded in the manner provided by the Code of Criminal Procedure. That statement must be admissible in evidence under the provisions of this Act to be of use at the trial. It becomes admissible, if the maker of the first information report comes in the witness‑box and narrates the events of which he has personal knowledge and then further states that he had made the same narration earlier at the police station which was recorded by way of first information report. The last portion of the statement of the witness is admissible under this section as corroborating the testimony."
Commenting on section 35 (ibid) the following observations have been made:‑‑
"When there is an official duty cast upon any officer to make an entry in his register, such entries are admissible under section 35. The village Crime Note Book is one of the registers which are prescribed for a station house under the Police Manual. Therefore entries in it are admissible to prove that certain crimes were reported and registered, but of course they are no proof against persons named as suspects in them."
Recently in, a decision of this Court in Abdul Rashid Mughal v. Muhammad Shabbir Abbasi 1984 S C M R 1172 the law was reiterated in the following words‑‑
"It is obvious that in the absence of any legal evidence learned Judges were somehow persuaded to hold, merely on the basis of the contents of the F.I.R., that appellant was convicted for an offence involving moral turpitude. Unfortunately they failed to notice that both the documents produced in support of the allegations against appellant, namely, F.I.R. and certificate from Deputy Superintendent, District Jail, Rawalpindi, were inadmissible evidence and, by themselves, furnished no proof upon which a conclusion could be drawn, much less a judgment rendered, that appellant was held guilty and convicted for an offence involving moral turpitude. The judgment of the High Court having been based on conjectures rather than any legal evidence "
This exclusionary rule of evidence may appear to be too formal and somewhat strict and inflexible, but it has its roots deep down in law. While commenting on section 54, Evidence Act Monir mentions that "it is no disproof of good character that a man has been suspected or accused of a previous crime". Wharton Criminal Law Evidence 9th edition mentions the following principle "The only safe course, therefore, is to found the verdict exclusively on evidence duly received and on inferences logically to be drawn from such evidence" And no evidence is to be received which is second hand rendering of testimony not produced, though producible, by which a higher degree of certainty could be secured". Wigmore commenting on Theory of Hearsay Rule in section 1362 observes as follows:‑‑
"The theory of the Hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may bye best brought to light and exposed by the test of Cross‑examination." and quotes with approval the following remarks of Kent, C.J. (in Coleman v. Southwick, 9 John. 50):‑‑
"A person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities, he entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author."
Monir in his commentary on section 183 of the Evidence Act remarks "where no opportunity to cross‑examination the deponent has been given, his testimony would be inadmissible."
Now the question is who is the deponent in respect of F .I. Rs. copies of which were produced from the record to prove not the mere lodging of it but all the contents thereof. Certainly the maker thereof, it contents are to be taken into consideration. If they are not meant to go any further than to show mere registration of a case then the judicial verdict of discharge or acquittal reacts more strongly against the correctness of the contents thereof. In either case its probative value disappears.
5. Character when Fact in issue:
The question of relevancy of character, where it is not a fact in issue, is governed by section 52 to section 55 of the Evidence Act. These sections limit its relevancy and also control the nature of proof admissible or required. The substantive law in the present case (clauses (d) (e) and (f) of sub‑Article (1) of Article 10 of the Order require a candidate to be of "good character", "not commonly known as one who violates Islamic Injunctions", possessed of "adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins", is sagacious, righteous and not profligate and honest and Ameen". All these qualities of the human mind and the heart have the effect of enlarging the traditional concept and meaning of character and thereby permitting the admission of wide range of evidence to prove or disprove it. Character has been given the following meaning: ‑‑
"(i) the aggregate of the moral qualities which belong to and distinguish an individual person, the general result of one's distinguishing attributes" (14 CJS 398).
(ii) character is the actual moral or physical disposition or sum of traits and is to be distinguished from reputation or any other source of evidencing character (Wigmore, on Evidence, section 52, Vol. 1).
(iii) the word character includes both reputation and disposition (explanation to section 55 of Evidence Act)."
As regards the manner in which the character is to be proved where it is a fact in issue and where it is not a fact. in issue will appear from the following observations‑‑
(i) "It has been said that in legal parlance, the term 'character' has a dual meaning. It may refer to a person's private life, about which the public may have no knowledge, or it may mean the character a person who enjoys by reputation; and whether it will be given one or the other meaning will, of course, depend op the circumstances of its use in the particular case, for context and intent must generally be resorted to in the interpretation ........ As a general rule, the character of a person cannot be proved from the personal knowledge of the witness, and the personal or individual opinion of the witness in that regard is not admissible; the existence of an inference on the part of an observer as to the existence of a particular relevant trait of character is inadmissible, even where it is an inference from observed conduct.
According to some cases, however, such evidence may be received when the fact as to actual character was placed in issue by the pleadings, and it has been stated broadly that the habits or moral character of a person may be shown by the testimony of one who has personal knowledge of the facts. (32 CJS 65).
(ii) Character may be proved by (a) 'particular instances of conduct, good or bad from which is inferable the permanent disposition that has inspired them', (b) personal knowledge of one who has observed the man, (c) the reputation of the man, the net expression of a multitude of personal opinions' based more or less on personal intercourse (Wigmore‑section 920).
(iii) Negative evidence, such as 'I never heard anything against the character of the man' is the most cogent evidence of a man's good character and reputation because a man's character is not talked about till there is some fault to be found with it. It is the best evidence of his character that he is not talked about at all" (Cockburn, C.J. reproduced from Wigmore on Evidence Vol. V, p. 484).
In view of our law (sections 45 to 51 of Evidence Act) opinion of individuals about the character, conduct, disposition will not be admissible in evidence but the specific instances from which an inference with regard to fact in issue can be drawn will certainly be admissible.
There was a contention by the learned counsel for the appellant that the use of the word "is" in Article 10(1) of Order clearly implies the historical present and evidence cannot be led of events in the distant or remote past to prove the present character or the present reputation or the disposition of an individual concerned. As an abstract proposition and independently, this may be the correct view but when we are dealing with the character of an individual where specific instances are admissible in evidence then the presumption arising under section 114(d) of Evidence Act in favour of continuance or immutability will take over and unless it is shown that a manifest change has taken place the trait or the habit or the disposition will be taken to have continued so far as that individual is concerned. The three general rules as to the use of the word character at a prior time has been dealt with in Wigmore on Evidence in section 929 and the three rules have been elucidated as hereunder‑‑
(1) On principle, the correct solution seems to be that prior character at any time may be admitted, as being relevant to show present character, and therefore, indirectly to show the probability as to the truth‑speaking. The only limitation to be applied would be the one applicable to all use of a former condition to show a present one.
(2) Another solution is that prior character should not be resorted to unless for some reason present character cannot be directly shown, either by the witness on the stand or by any witness at all.
(3) A third solution appears to altogether exclude prior character. This is wholly incorrect on principle, because It is founded on a fallacious analysis of the problem. It is objectionable in policy, because it excludes a class of evidence often meritorious in itself and sometimes the sole kind that is available.
It is summarised thereafter that‑‑
"Of these three competing rules, each finds a following in some jurisdictions, but the last is little favoured, and the first is tending to predominate."
The past instances are, therefore, relevant though their evidentiary weight may diminish on account of inordinate passage of time.
The judgment under appeal examined.
Having dealt generally with some of the legal questions arising in the case, it is time to come to the more specific points covered by the judgment under appeal. The First Information Reports were admitted in evidence without examining the scribe or the maker thereof. They were put in evidence as copies of official record maintained at police station. The respondent election petitioner, as a witness, admitted that the appellant was discharged or acquitted in all these cases and while admitting so rendered the opinion that it was "mainly on account of the threats given to the prosecution witnesses or through compromise". It was not the case of either party that the maker or the scribe of these reports were not available as witnesses. In the judgment each F.I.R. was reproduced in extenso. From at least three remarks of the Tribunal, all relatable to contents of First Information Reports and to no other material, it appears that not only their contents were reproduced in extenso, the facts contained in these reports were accepted as true and correct. The first such remark is as follows‑‑
"This is the proper stage to take judicial notice of the events happening around us. Influence, money, desperate character of the accused, involved has in many cases deterred the witness to come forward for supporting the prosecution case."
The second remark is as hereunder:‑‑
"I am constrained to hold that he is commonly known as f person who violates the Islamic injunction inasmuch as his reputation is that of a drunkard and a person who had been committing crimes including one under section 392 of the Pakistan Penal Code for which offence the Holy Quran has prescribed punishment. That is why such offence under the Hudood Ordinance, is liable to Hadd and is known as Harabah."
The third remark is as follows‑‑
"If in fact the respondent obtained the liquor permit only on medical grounds, then how can he explain his apprehension in a drunken state at 2‑00 a.m. along with his companion Sarwar when he had tried to forcibly open the door of the house of a prostitute at Lalamusa."
Even if the appellant had waived the numerous objections taken to the production and admissibility of the First Information Reports and other similar documents it was the duty of the Tribunal to have examined their evidentiary worth and weight in proving facts and events. If that exercise had been undertaken, it would have become unnecessary to reproduce the contents thereof in extenso, or to adopt the recitals therein as standard truths for evaluating and appraising the other evidence on record. As the makers of the First Information Reports were not produced and no opportunity to cross‑examine them was afforded, their standing with respect to the parties and the subject of litigation, their interests, their motives, their means of obtaining a correct and certain knowledge of the facts, their manner and demeanour as witnesses remained unexplored. Cross‑examination being essential to the discovery of truth it was necessary to the admissibility of facts stated by them that opportunity to cross‑examine them should have been given before sanctifying their statements as facts. Besides, the verity, the sanctity and the finality of the Courts record, the judgments and orders, the judicial process itself, could not have been all set at naught, jeopardized or thrown open to serious doubt by making a casual and sweeping remark having its basis in "influence, money, desperate character of the accused'. Not only such remarks are against the initial presumption under section 114, Evidence Act clause (g), they are greatly generalized and based on no solid material, they are more unfortunate, coming as they do from a Judge of the Superior Judiciary and having the effect of damaging the very foundation of, and confidence in the system over which he presides.
There were two newspaper reports, one of Daily 'Taameer' (Exh.P.W.8/12) and the other of Daily 'Jung' (Exh.P.W.7/1). The appellant stated that these were neither brought. to his notice nor he had read the same. The Tribunal rejected the plea observing that Daily 'Jang' has a wide circulation and, therefore, I am not prepared to believe the explanation of the respondent'. These reports were admitted in evidence on the basis of the decision in Abdul Wali Khan's case and Sher Muhammad v. Crown L D 1949 Lah. 511. What is more there was a poster published appealing to the President in respect of which the appellant had lodged an F.I.R. under sections 500, 501, P:P.C. The appellant stated that he had compromised that case. This explanation was also not accepted by the Tribunal observing as follows:‑
"The best witness who could have, rather should have seen produced before this Tribunal was Nazeer Hussain Berlas but since he was not produced by the respondent, therefore, the Tribunal was left with no choice except to infer that the explanation offered by the respondent was an afterthought and, therefore, I reject this explanation. The presumption is that had Nazeer Berlas been produced, he would not have supported the respondent, similar to that of the witness produced by the respondent who had refused to support his case in F I . R lodged by the respondent under sections 500 and 501 of P.P.C."
It has come in evidence that the persons responsible for publishing these materials were available and yet were not produced. Section 81 of Evidence Act relied upon by the learned counsel for the respondent for proving the genuineness of the newspaper reports read (before its amendment by Ordinance XXVII of 1981, dated 8‑7‑1981) as hereunder:‑
"Presumption as to gazettes, newspapers, private Acts of Parliament and other documents.‑‑The Court shall presume the genuineness of every document purporting to be the London Gazette or any official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament, of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody."
After the aforesaid amendment it reads as hereunder:‑
"81. The Court shall presume the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody."
In any case it is not the genuineness of these reports which is in issue. It is the correctness or otherwise of the contents of these reports. The cases relied upon by the learned Tribunal are of no avail. In Abdul Wali Khan's case, the Court was free to adopt the procedure that it considered suitable and in exercise of that power decided as follows:‑
"So far as the procedure to be followed is concerned, we have already indicated in our very first order passed on the 12th April, 1975, in these proceedings, that 'we are unanimously of the opinion that since this is a Court of law, this Court will adopt the ordinary accepted judicial norms of procedure and will follow as far as practicable, the Evidence Act preserving to itself the right to relax its provisions as and when reasonably necessary, in order to avoid unnecessary difficulties in the putting forward of the evidence of the material, as the case may be, which the parties may wish to place before the Court. If any legal objection can be raised to such relaxation on any cogent ground, such objection must be raised at the appropriate time and will be decided as and when raised'. We ‑ see no reason to depart from the above and have endeavoured to follow that procedure, as far as practicable, throughout the course of the proceedings in this matter, which is the first of its kind."
Equipped with this power the Court exercised it in that case by laying down the rule thus:‑
"We were ourselves conscious of these difficulties and it is for this reason that we have, as already indicated, decided to relax this rule in the cases of reports of incidents or events which took place in foreign countries or of reports of speeches or statements made there if they have not been contradicted. Similarly, articles published in foreign newspapers will also on similar grounds of necessity be admissible in these proceedings."
In Sher Muhammad's case P L D 1949 Lah. 511 there was a procedure lawfully prescribed and a power available to the Court. It was in the form of rule 10 framed by the Lahore High Court under Press Emergency Powers Act (XXIII of 1931). Under it the Crown was entitled to controvert statements of fact in the articles complained of by means of affidavit and where there was no such affidavit the facts stated in newspaper reports could be accepted as correct. The Election Tribunal in the present case was possessed of no such power. It was bound by the strict law of Evidence which left no stops for admitting in this casual in summary fashion the newspaper reports and poster. Any finding influenced by such material must get tainted.
In para. 38 of its judgment the Election Tribunal has taken note of an administrative report (Exh.P.W.8/13) by S.H.O., Mirpur (not produced at the trial) about the activities of the appellant. It could not have been taken to be proof of the correctness of its contents without examining the maker thereof as a witness, without allowing an opportunity to the appellant to cross‑examine him.
In para. 44 of its judgment the Tribunal has taken note of report made by a Police Officer (not produced at the trial) under section 173, Cr. P. C . in a case registered on 27‑11‑1983 under sections 297 and 477, P. P. C. , vide F.I. R. No.229. The appellant denied knowledge of pendency of any such case. Such a report also could not be admitted as evidence of the correctness of the facts stated therein. It is not admissible even at the trial of that very case, for it reflects the opinion of the Investigating Officer of Police, in a case which is put up for judicial trial. It is opinion of the Police Officer who is required to appear as a witness at the trial. Such a report only proves that it was made in the case but as regards; the correctness of the contents thereof it is of no value. Besides, as it relates to a pending criminal case, the presumption of the innocence of an accused involved in it does not get diminished by the facts that the case was sent up for trial, or that a particular witness or person formed the opinion that the facts of the case were correct.
The learned Tribunal came to the conclusion while dealing with his so‑called abscondence in a case registered at Police Station, Mirpur in Azad Jammu and Kashmir, vide F.I.R. 39, dated 26‑5‑1965 that he was 'a liar and has been deliberately suppressing the truth by approbating and reprobating'. The background of the case was that this case under section 420, P.P.C. was registered at the instance of one Muhammad Lai son of Nek Muhammad who did not appear as a witness at the trial. It was the respondent election petitioner who while under examination as his witness produced a copy of the F.I.R. and the record of proceedings of Writ Petition No. 1294 of 1965 and the copies of the statements of witnesses relating to the proceedings in the case and under section 512, Cr.P.C. (Exhs. P.W.8/4 to P.W.8/11). In cross‑examination, he admitted that these documents were with him but he did not file them alongwith the petition and admitted the background in the following words:‑
"It is correct, that I produced these documents yesterday during my examination‑in‑chief. I did so, because I did not expect, that the averments in this petition relatable to these documents would be denied by the respondent No.1. It is correct, that I received the copy of the written statement through post in June, 1985. However, I was expecting, that when the respondent shall enter the witness‑box before me, I thought I would be confronting the respondent with these documents in cross‑examination, but since I entered the witness‑box earlier than the respondent, therefore, I had to produce these documents to place on the record before the Tribunal."
This case was ultimately withdrawn but the Election Tribunal relied heavily on the statement of witnesses recorded in those proceedings. It is not clear as to under what law such evidence was admitted and made the basis of decision against the appellant in a case which ultimately was withdrawn.
Nazir Ahmed son of Nek Alam (P.W.6) swore an affidavit (Exh.P.W.6/10) and appeared in Court as a witness. What he stated in the affidavit and in his statement before the Tribunal was that in the year 1971 he had undertaken to purchase a truck from the appellant and had given an advance of 36,500 rupees and when he went to collect the truck on the payment of the balance, he was beaten and turned out. Neither the truck was given to him nor the money. He reported the matter at the Police Station Jhelum City and till to date no action was taken on his report. It is surprising that no report in respect of this statement has been filed. Considering the number of copies of the First Information Reports filed in the case without the production of the maker thereof or the scribe it is surprising that this report if in existence as contemporaneous proof of the events taking place was kept back. He admitted that he neither pursued the matter by a complaint nor by a civil suit. His' statement in the context is uninspiring, and not supported by contemporaneous proceedings.
There were affidavits of Muhammad Lai son of Nek Muhammad, Muhammad Sarwar son of Haji Nawab Din, Malik Lai Khan son of Boots and Ch. Muhammad Nazir son of Alaf Din, but none of these persons were produced as witnesses. In spite of it, the F.I.R. lodged by Muhammad Lai and the proceedings leading to abscondence were taken note of by the learned Election Tribunal and given full effect against the appellant notwithstanding the fact that Muhammad Lai had concluded those proceedings by submitting in Court an application that he had implicated him in that case on account of a mistake and a misunderstanding and the case was withdrawn on that application.
The liquor permit obtained by the appellant in 1967 in accordance with the law then prevailing, was inter alia, made the basis by the learned Election Tribunal for concluding that he was a drunkard and prone to commit major sins. If the law then in existence permitted a particular act and that was in the Islamic State itself then how could the individual availing of it could be condemned as indulging in major sins twenty years afterwards and taken to be a man with a soiled reputation. . There was no other instance of his being found or having the reputation of being a drunkard except for what the Maulvis stated in the sermons which shall be dealt with hereinafter separately. On the basis of the liquor permit obtained in 1967, the conclusion of his being a drunkard or prone to commit major sins in 1985, was unjustified, far‑fetched and untenable.
The question of the transfer of evacuee trust property of which the appellant had obtained a Permanent Transfer Deed which was found to be forged, reliance has been placed on the report of the Deputy Settlement Commissioner who was also the Administrator Residual Property and for certain purposes the Notified Officer under Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). This exercise of the Deputy Settlement Commissioner in respect of what admittedly was an evacuee trust property was without jurisdiction. As Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood repealed in 1975, the Deputy Settlement Commissioner was not the successor authority of the Deputy Settlement Commissioner who issued the P.T.D. Neither as Notified Officer nor as Deputy Administrator Residual Property the Deputy Settlement Commissioner could in 1983 adjudicate in the matter. The statement given in Majlis‑e‑Shoora with regard to this property by the Minister, is also irrelevant because the statutory authority, having jurisdiction in the case was the Chairman, Evacuee Trust Property who is still seized of the matter and has yet to dispose it of. A pending matter could not be pre‑judged in a collateral proceedings and made the basis for finding out the character and reputation of a candidate at an election.
So far as the corrupt practice, the undue influence and invoking of religious sanctions with the connivance of the appellant is concerned, reliance has been placed on three speeches covered by Muhammad Sharif, Head Constable, Special Branch (P.W.4) and Muhammad Feroze, Constable, Special Branch (P.W.5). Muhammad Sharif claimed to have attended officially the meeting held in a mosque Gumbadwali Jhelum from 6‑30 p.m. to 7‑30 p.m. The speakers were Maulvi Abdul Latif and Maulvi Muhammad Sharif of Dina. A resolution was also passed at the meeting. The record of these speeches or proceedings is neither verbatim nor complete because what is recorded can be reproduced orally in two minutes while it is supposed to cover the proceedings and utterances lasting about an hour. Allowing every concession for time wasted such a record can only be a summary of the proceedings and selective in its content. The other similar report made by Muhammad Feroze Constable relates to proceedings of 22nd of February, 1985. The proceedings covered were from 1‑15 p.m. to 2 p.m. and the record happens to be just an abstract. The third such diary is of a meeting, dated 25‑1‑1985. The meeting covered was from 1‑15 p.m. to 2‑15 p.m. and with regard to election and the comparative merits of the candidates only four lines are recorded. On such a record which is neither complete nor verbatim and appears clearly to be selective and purposive no party can be condemned. Besides, though mosque has been used as a place for evaluating the comparative merits of the candidates, there is no indication of a false statement with regard to the private character of any of the candidates. The conduct of the respondent election petitioner criticised in the meeting related to a matter of public interest and his performance as a Member, Majlis‑e‑Shoora. It cannot qualify as an attack on his private character as such. The resolution of the group to vote for a particular candidate is not offensive so far as the requirements of the election are concerned.
The other use that has been made of these speeches is that the Election Tribunal held that while condemning the respondent, it was suggested about the appellant that as an alternative candidate even if he had the characteristic of being a drunkard and womanizer, he was to be preferred. Such a statement if held to be directed towards the appellant would, on the one hand disprove any connivance on his part in the making of such a statement and on the other, it being conditional and hypothetical and vague could not be taken to be a proof of the notoriety of the reputation of the appellant as was done by the Election Tribunal. The record of these speeches and proceedings is not only imperfect and incomplete it is vague and inconclusive.
The word 'Ameen' has been given a very extended meaning by the learned Election Tribunal so as to include 'all rights and liabilities whether concerning Allah or His creation, whether of individual significance or collective, whether concerning one's relatives or strangers, financial matters or political agreements'. The learned counsel for the respondent has also advocated an extended meaning by concluding, that word 'Amanah' includes all the good qualities of Muslims including righteousness, freedom from profligacy as well as abstinence from major sins. It would also include the practising of obligatory duties. Ameen is a person 'who obeys Allah and His Prophet in his actions, utterances as well as beliefs'. Such an extended meaning of Ameen is quite out of place because clause (f) which contains it equally applies to non‑Muslims. For that reason it has to be given more mundane and uniform meaning restricted to one's dealings with fellow beings and public affairs generally. The spiritual, the religious and the philosophical content thereof has to be ignored.
The contention of the learned counsel is correct that the evidence of the appellant with regard to reputation and character has not at all been noted or considered in the judgment of the Election Tribunal. Three Advocates were produced who stated about good character of the appellant. They were cross‑examined. Nothing was found in their cross‑examination to discredit them as partisan or unreliable witnesses or as persons not having full knowledge and information about the reputation and character of the appellant. Negative evidence furnished by them was relevant 'as shown earlier. In any case this evidence had to be taken note of and evaluated.
The Election Tribunal hurriedly concluded after holding that the appellant was disqualified or lacked the qualification to be elected, that the disqualification in the form of notoriety of the appellant was obvious and known and hence votes cast in his favour would be deemed, to have been wasted. This has been done notwithstanding the fact That the appellant already held the elected offices in succession for two terms and was holding one and on the same grounds objections taken at the stage of scrutiny of the nomination paper stood rejected and the appeal against it had also failed and further the speeches of the Maulvis relied upon for declaring the appellant unsuitable and ineligible made the respondent equally ineligible for that elected office. It could not, in this background of events. be said that the disqualification was notorious that the votes were thrown away or that the respondent was 'entitled' to be declared elected on success of his petition.
In the circumstances and for the reasons given, the appeal is accepted with costs throughout and the judgment of the Election Tribunal declaring the appellant ineligible and disqualified is set aside, resulting in she dismissal of the election petition filed by respondent No.1 and the objections of respondent No.5.
A. A. Appeal accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer