Find a Lawyer

Writ Petition No. 262 of 1963, decided on 30th October 1963.

Second Sched., Part II, S. 2(c)‑Expression "moral turpitude"‑Meaning‑Person fraudulently obtaining transfer of evacuee land‑Guilty of moral turpitude.

Ramanatha Aiyar's Law Lexicon ref.

Second Sched., Part II, S. 2(c)‑Words "sentence of imprisonment for a term not less than six months"‑Remission earned or granted to convict by authorities other than Courts do not interfere with basic structure of sentence awarded by Court‑Word "sentence"‑Does not necessarily mean "sentence by Court " Remission earned as part of continuing legal process envisaged by statute itself under which person is convicted‑Not pardon or remission by executive authority‑Remission, in such case, wipes off unexpired period of sentence‑Person, sentenced to more than 6 months' imprisonment under Martial Law Regulation (C. M. L. A's.) No. 49, suffering only 40 days' imprisonment, sentence having been remitted on petition under para. 6, Martial Law Regulation (C. M. L. A's.) No. 61 [reconstituted]‑Not disqualified from being candidate or member of Local Council.

Khagendranath and others v. Umesh Chandra Nath and others A I R 1958 Assam 183 distinguished.

S. M. Zafar and Munir Ahmad for Petitioner.

Ata Ullah Sajjad A. A. G. and M. S. Baqir for Respondents.

Ch. Feroze Din for the Complainant.

Dates of hearing : 10th, 15th and 16th October 1963.

‑We had accepted this petition on the ;:,.15th of October 1963 for reasons which we proceed to record. The facts leading up to this petition may first be stated.

2. The petitioner, Saudagar Ali, was elected as a Member of the Union Committee No. 22, Khanewal, in December 1960 and later elected as its Chairman in March 1961, He was tried by a Special Military Court for an offence under Martial Law Regulation No. 49 which ended in his conviction and a sentence of five years' rigorous imprisonment and a fine of Rs. 10,000.00 or in default one year's further imprisonment. In confirmation proceedings before the Martial Law Sub‑Administrator, No. 3 Sector Lahore, the sentence was reduced to one year's rigorous imprisonment arid a fine of Rs. 5,000.00. The order was announced on the 22nd of February 1962, when the petitioner was taken into custody.

3. On a representation to the Martial Law Administrator, Zone B, the petitioner's unexpired portion of the sentence of imprisonment was remitted as also the fine. The order was made on the 3rd of April ‑1962, and the petitioner was released on the 4th of April 1962. The petitioner thus suffered only forty days' rigorous imprisonment. Consequent upon his conviction and sentence, as stated above, the Collector, Multan District, served a show‑cause notice on the petitioner as to why he should not be removed from Membership and Chairmanship of the Union Committee. In the proceedings that followed, the District Council, Multan, adopted a resolution for the removal of the petitioner from the Membership and Chairmanship of the Union Committee No. 22, Khanewal, resulting in a notification by the Collector No. 8581.‑B. D., dated the 27th of March 1963, removing the petitioner from the aforesaid offices. It was further stated in the notification that the petitioner was dis qualified to stand for election in any local council, municipal body or other local authority for a period of two years.

3. The present writ petition challenges this order of removal on the contention mainly that the petitioner is not hit by the disqualification mentioned in section 2, Part II of the Second Schedule to the Basic Democracies Order and that clause (c) of section 2 which has been invoked against him is inapplicable. Clause (c) of section 2 aforesaid reads :‑

"If he has been ordered to execute a bond under section 110 of the Code of Criminal Procedure 1898 (Act V of 1898), or has been, on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months, unless five years, or such less period as the Government may, by notification in the official Gazette, specify in this behalf, has elapsed from the date of the expiration of the period of the bond or sentence, as the case may be."

5. Two simple questions arise for consideration, firstly, whether the offence for which the petitioner was convicted involved moral turpitude and, secondly, whether the sentence of imprisonment awarded to him for the offence was for a term not less than six months. On the first point, as already stated, the petitioner was prosecuted and convicted under Martial Law Regulation No. 49 on the charge that he was in possession of 26 kanals of evacuee urban land by means of fraudulent allotment to which he was not entitled and that he failed to make a declaration in respect of the land as required by the said Regulation (No. 49). The expression "moral turpitude" is not, defined in the Basic Democracies Order, nor in any other statute, but as generally understood, anything which is done contrary to the good principles of morality involves moral turpitude, i.e. anything that injures the moral fibre of a person and lowers him down in moral values. In Ramanatha Aiyar's Law Lexicon the phrase is defined as follows :‑

"Anything done contrary to justice, honesty, principle, or good morals ; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.

A term not clearly defined.‑What constitutes moral turpitude, or what will be held such, is not entirely clear. A contract to promote public wrong, short of crime, may or may not involve it. If parties intend such wrong, as where they conspire against the public interests by agreeing to violate the law or some rule of public policy, the act doubtless involves moral turpitude. When no wrong is contemplated but is unintentionally committed through error or judgment, it is otherwise. Everything done contrary to justice, honesty, modesty, or good morals is done with turpitude, so that embezzlement involves moral turpitude."

In the present case, the accusation against the petitioner was that he had, in the first place, fraudulently obtained the transfer of some evacuee land and when under the law he was required to make a declaration of such illegal possession of the evacuee property, he not only violated the law by omitting to make a declaration but was certainly guilty of moral turpitude in trying secretly to retain his unlawful gain of the evacuee property. The offence of the petitioner in the circumstances, did certainly involve moral turpitude.

6. On the second question, the stand taken by the learned Additional Advocate‑General, representing the respondent, was that the judicial verdict against the petitioner as recorded by the Special Military Court and confirmed by the Martial Law Sub‑Administrator was one of conviction arid a sentence of one year's rigorous imprisonment and a fine of Rs. 5,000.00, which alone has to be taken into account for considering whether or not the petitioner suffered from a disqualification as a result of it under the Basic Democracies Order. It was contended that the subsequent remission of the sentence by the Martial Law Administrator, Zone B, which was purely an executive act, did not have the effect of wiping off or reducing the sentence to remove the petitioner's disqualification. He cited Khagendranath and others v. Umesh Chandra Nath and others (A I R 1958 Assam 183) in support of the view that a remission granted by an executive authority does not have the effect of extinguishing or curtailing the sentence awarded judicially To determine the point as to what was the term of sentence awarded to the petitioner under the Martial Law Regulation it is necessary to examine the scope of the Regulation itself under which he was tried, i.e., Martial Law Regulation No. 61, as reconstituted, and promulgated on the 4th of February 1959. No case relating to an offence under any of the Martial Law Regulations was thenceforward to be tried by any Court other than a Special or a Military Court save cases which were already pending in Courts other than Military Courts. Para graph 2 of the Regulation barred an appeal or revision from any sentence imposed in a case tried by a Special Military Court or a Summary Military Court ire pursuance of paragraph 1. Similarly, in respect of cases tried by Criminal Courts under Martial Law Regulations before the twenty‑fourth day of December 1958, in which sentences were imposed and confirmed subsequently by the Zonal Martial Law Administrator, the remedy of appeal or revision was taken away so that cases which were fending after the 24th day of December 1958, were subject to the normal incidents of appeal and revision, as provided in the Code of Criminal Procedure. Paragraph 6 which provided a relief by way of petitions from sentences imposed by Special Military Court and which is relevant to the present case runs as follows:-

"6. Petitions from sentences imposed by Special Military Courts :

(1) Where a Special Military Court (or a Summary Military Court) trying a case in pursuance of paragraph 1 imposes a sentence, a petition shall lie‑

(a) to the Zonal Martial Law Administrator, in respect of all sentences ;

(b) to the Commander‑in‑Chief of the Army as Deputy Chief Martial Law Administrator where such sentence has been confirmed by the Zonal Martial Law Administrator and is not less than seven years' rigorous imprisonment.

(2) A petition under clause (a) of sub‑paragraph (1) shall be submitted within fifteen days of the imposition of the sentence.

(3) A petition under clause (ii) of sub‑paragraph (1) shall be submitted within fifteen days of the communication to the petitioner of the order made under clause (1) of that sub paragraph.

(4) Where a sentence has been imposed by a Special or a Summary Military Court before the issue of this Regulation, a petition may be submitted to the Zonal Martial Law Administrator within fifteen days of the issue of the Regulation, and thereafter in accordance with clause (b) of sub‑paragraph (1) and sub‑paragraph (3) of this paragraph.

(5) The Zonal Martial Law Administrator or the Commander -in‑Chief of the Army to whom a petition is submitted under this paragraph may pass such orders thereon as he thinks fit."

It seems to us that this paragraph gave a legal right to the convicts to approach the Zonal Martial Law Administrator for re‑appraisement of the guilt and revision of the sentences imposed upon them and it was as such a continuing process in the hierarchy of Courts as established by the Regulation. Petition under this paragraph could be made as a matter of right within fifteen days of the communication to the petitioner of the order made against him under clause (1) of the sub‑paragraph. The Assam case cited by the learned Additional Advocate‑General proceeded on the interpretation of section 7 of the Representation of the People Act, 1957, in force in India, the relevant portion of which is to the following effect :‑

"7. Disqualification for membership of Parliament or of a State Legislature,‑

A person shall be disqualified for being chosen as, and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State‑

* * * * * * * *

(b) if, whether before or after the commencement of the Constitution, he has been convicted by a Court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release."

It will be seen that the disqualification under this provision pertains to the sentence of a certain limit as awarded by a Court and their Lordships rightly observed that the remission earned bye or granted to a convict by authorities other than the Courts do not interfere with the basic structure of the sentence as awarded by the Court. Clause (c) of section 2 of the Second Schedule, Part II, to the Basic Democracies Order of 1959 does not contain the words "sentence by a Court" but the disqualification merely pertains to sentence of imprisonment by whomsoever passed. In the case in hand the petitioner's sentence was reduced by the Martial Law Administrator, Zone B, by allowing to the petitioner a relief to which the Regulation itself entitled him. The remission made in his case was a part of the continuing legal process envisaged in Martial Law Regulation No. 61, as recon stituted, and it, cannot be said that as it was an act of pardon or remission by an executive authority it did not interfere with the judicial sentence as initially awarded to the petitioner by the Military Court. The analogy of remission of sentences under section 401 of the Code of Criminal Procedure which was pressed into service by the learned Additional Advocate‑General to show that the remission in this case was also an executive act does not seem to be in point. The powers of the Provincial Government under that section are in the nature of transcendental powers independent of the legal remedies of appeal and revision which are available to a convict under the Criminal Procedure Code Again, remission from the Government by a prisoner cannot be sought as a matter of right nor is there any time limit for such limitation as provided in paragraph 6 of Regulation No. 61. The remedy provided by Paragraph 6, therefore, is a legal remedy claimable as a matter of right and in our view forms a link in the chain of legal process of the trial under the Martial Law Regulation.

7. Even if we were to agree with the Additional Advocate --General that the remission of the sentence was an executive act of pardon or grace on the part of the Martial Law Administrator, the result in this case would not be different. The action had the effect of wiping off the unserved sentence of the petitioner which brought down the term of imprisonment to about forty days which he suffered before his release, so that the total amount of imprisonment undergone by him was less than six months which is the ceiling provided by the disqualification provision of the Basic Democracies Order, referred to above. Pardon, as remarked by Mr. A. K. Brohi in his book, Fundamental Law of Pakistan, at page 107, in its effect reaches both the punishment as well as the guilt. Remission absolves the sentence completely where the remission is total and where it is partial to the extent of the sentence remitted. In case where the portion of the sentence is remitted, it will be deemed as if the portion thus remitted was never imposed. In these circum stances, we feel that the petitioner does not fall within the mischief of the disqualification clause and his removal, therefore, was without any legal basis. Consequently, we issue a writ of certiorari, quashing his removal and declaring it to be illegal. We further hold that he continues to be a Member of the Khanewal Union Committee No. 22 as well as its Chairman, which offices he held and continues to hold in spite of the notification of his removal made by the Collector, Multan. We leave the parties to bear their own costs.

K. H. A. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.