2004 C L C 1143

 

[Lahore]

 

Before Syed Zahid Hussain and Rustam Ali Malik, JJ

 

Malik AHMED KHAN AWAN—Petitioner

 

Versus

 

ELECTION COMMISSION OF PAKISTAN, PUNJAB, LAHORE and another—Respondents

 

Writ Petition No.6884 of 2003, decided on 5th April, 2004

 

(a) Punjab Local Government Ordinance (XIII of 2001)—

 

—-S. 161—Constitution of Pakistan (1973), Art.199—Constitutional petition–Order. was passed by the Election Commission, suspending notification of the petitioner’s election as of a Union Council on the basis of adverse observations made in, an earlier order of the High Court regarding the petitioner—Application was filed by the petitioner for recalling the said order of the Commission, however, the Commission through an impugned order declined to interfere with the same–­Constitutional petition was filed by the petitioner against the impugned order—Contention of the petitioner was that only a final order could be passed by the Commission after following the procedure laid down by law, whereas the said order of suspension had the ramifications of order of removal and that in matters pertaining to the elected office-holders injunctive orders were not to be issued disabling them to perform their functions—Validity—power to remove an elected member, in duly and properly launched proceedings, could only be exercised by following the procedure laid down in S.161 of the Ordinance, and such a removal would be the ultimate and final result of the proceedings -on its conclusion—Elected office-holders are not to be restrained from performing their functions as an interim measure until the final determination as to the disqualification or other allegations against them was made by the forum seized of the matters.

 

Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Capt. Muhammad Azhar v. Province of Punjab through the Secretary, Government of Punjab, Lahore and 2 others PLD 1975 Lah. 921; Abdul Wahid and another v. Din Muhammad and others PLD 1982 Lah. 168; Rameshwar Das v. Yakin-ud-Din Khan and another AIR 1924 Lah. 633;.E.M. Gopalakrishna Konar v. A. Vilanga Konar and another AIR 1932 Mad. 132; Shamsuddin Ahmed v. Charu Chandra Biswas and others AIR 1934 Cal. 621; Ch. Abdul Qadir v. The Election Tribunal and 3 others PLD 1984 Lah. 103; Julius Salik v. Returning Officers and 27 others 1989 CLC 2499; Sardar Muhammad Abdullah Khan Tahir v. Sahibzada Muhammad Usman Khan Abbasi and 4 others 1998 CLC 612 and Syed Masroor Ahsan v. Muhammad Tariq Chaudhary and others 1991 SCMR 668 ref.

 

(b) Punjab-Local Government Ordinance (XIII of 2001)—

 

—-S. 159—Constitution of Pakistan, 1973, Art,199 — Constitutional petition—Fixation of term of office under S.159 of Punjab Local Government Ordinance, 2001—Rationale—Confidence and mandate-of the electorate was to be respected during the term of office of an elected office-holder, unless he incurred a disqualification and was found to be removed in accordance with law—Exercise of power of suspending the notification of election of the petitioner, amounted to removal -from office, and was not in consonance with the established principles as it had the -implications of grant of main relief.

 

(c) Punjab Local Government Ordinance (XIII of 2001)—

 

—-S. 161—Constitution of Pakistan, 1973, Art.199—Constitutional petition—Maintainability—Objection of the respondent was that petition against an interlocutory order was not competent—Validity—Order of Election Commission was further affirmed by the same Commission through a subsequent order, and said latter order was in the nature of a final order as far as the performance of functions as elected Nazim by the petitioner was concerned—Constitutional petition by the petitioner against the final order, in circumstances, was maintainable—Order passed by the, Commission, suspending notification of the petitioner’s election as Nazim of Union Council, was not warranted and was legally unsustainable and thus of no effect—Petition was allowed.

 

Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC 867; Sheikh Iftikharud Din and another v. District Judge, Bahawalpur exercising power of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523 and Pir Sabir Shah v. Election Commission of Pakistan and others PLD 1994 Lah. 516 ref.

 

Ahmad Awais for Petitioner.

 

Muhammad Nawaz Bhatti, D.A.-G. for Respondents.

 

Malik Muhammad Suleman Awan for Respondent No. 2.

 

Dates of hearing: 30th March, and 1st April, 2004.

 

JUDGMENT

 

SYED ZAHID HUSSAIN, J.–-Order of the learned Member, Election Commissioner, Pakistan, dated 26-6-2003, affirming an earlier order, dated 18-4-2003, whereby the notification of election of the petitioner as Nazim Union Council was suspended, has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The circumstances, giving rise to the petition, briefly stated are.

 

2: The petitioner is an elected Nazim of Halqa. No.38 Union Council Mandiali, Tehsil Ferozewala District Sheikhupura. In the backdrop of a habeas petition,- (Criminal Miscellaneous N0.341/H of 2002) which was disposed of by a learned Single Judge of this Court on 10-9-2002, it was observed that the petitioner (herein) had exceeded his lawful authority and misused his power. The view taken by the learned Judge was that he “prima facie by his said conduct has become disqualified to remain Nazim in the Union Council, which is a public authority.. In this view of the matter while exercising powers conferred on the High Court under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 his notification as Nazim is suspended and copy of this petition with order be sent to the Election Commission of Pakistan who will treat it as a reference against him and decide the same in accordance with law. Respondent’No.4 (the petitioner herein) shall not act as Nazim from today till the reference is entertained by the Election Commission of Pakistan on the said reference”. Feeling aggrieved thereof the petitioner assailed the said order before the Honourable Supreme Court of Pakistan through Criminal Petition No.322 of 2002, which was converted into appeal’ and the order relating to the suspension of notification of the petitioner was set aside on 20-9­2002. Mahmood Ahmed Goga respondent No.2 herein sent a reference before the Election Commission of Pakistan under section 161 read with section 152 of the Punjab Local Government Ordinance, 2001 for removal/ disqualification of the petitioner from the office of Nazim Halqa 38, Union Council Mandiali Tehsil Ferozewala District Sheikhupura pursuant to the order passed by the High Court in the abvoementioned habeas petition. It was prayed that the petitioner be “restrained by an injunction from performing the functions and exercising the privileges in respect of the said office”. On 18-4-2003 a learned Member of the Commission was pleased to pass the under mentioned order:–

 

“In view of the observations made by a learned Judge of the Lahore High Court, dated 10-9-2002 the respondent had prima facie taken law in his hands, his notification for election as Nazim Union Council 38, Mandiali, Tehsil Ferozewala District Sheikhupura is suspended forthwith.”

 

On applications moved by the petitioner for recalling of the abovementioned order the learned Member of the Commission declined to interfere with the interim order, dated 18-4-2003 and proceeded to dispose of the application on 26-6-2003 as follows:–

 

“After hearing the learned counsel for the petitioner I am not persuaded to interfere with my interim order, dated 18-4-2003 where the election of the respondent as Nazim Union Council 38, Mandiali, Tehsil Ferozewala District Sheikhupura was suspended. The simple reason being that there is an express finding by a Judge of this Court that the respondent exceeded his lawful authority.

 

  1. Application disposed of.”

 

It may be mentioned here that Writ Petition No.5341 of 2003 assailing order, dated 18-4-2003 had been filed by the petitioner, which was withdrawn on 29-4-2003 on pointation of the learned Bench that no final order had been passed. The present petition was then filed whereafter by way of amended- petition order, dated 26-6-2003 has been assailed that a restraint order had been passed qua the petitioner whereas the reference was still to be heard and decided. This petition was admitted to hearing on 16-7-2003 when respondent No.2 was also represented before the learned Beach, however, no written statement has been filed till date.

 

  1. It is contended by the learned counsel that the notification of election of the petitioner as Nazim could not be suspended merely on the basis of adverse observations made in the order of the High Court, dated 10-9-2002 while deciding the habeas petition, particularly when the Honourable Supreme Court of Pakistan had set aside that part of the order of the High Court. It is contended that only a final order could be passed by the Commission after following the procedure laid down by law whereas the order of suspension had the ramifications of order of removal. According to the learned counsel in matters pertaining to the elected office-holders restraint/injunctive orders are not issued disabling them to perform their functions. Reference in this context has been made by him to Abdul Waheed and another v. Din Muhammad and others PLD 1982 Lah. 168, Ch. Abdul Qadir v. The Election Tribunal and 3 others PLD 1984 Lah. 103; Julius Salik v. Returning Officer and 27 others 1989 CLC 2499. Sardar Muhammad Abdullah Khan Tahir v. Sahibzada Muhammad Usman Khan Abbasi and 4 others 1998 CLC 612 and an order passed by the Honourable Supreme Court of Pakistan in C.P. No.2125 of 2003., dated 7-10-2003.

 

The learned Deputy Attorney-General for Pakistan and the learned counsel for respondent No.2 have, while supporting the order passed by the learned Commission contended that there were clear and strong observations about the misuse of power and authority by the petitioner in the order, dated 10-9-2002 passed in Criminal Miscellaneous No.341/H of 2002, the Commission was justified to suspend the notification of election of the petitioner as Nazim Union Council. Some support is sought to be derived from the provisions of sections 152 and 161 of the Punjab Local Government Ordinance, 2001 (No.XIII of 2001) that such proceedings could be taken by the Election Commission and an order suspending the notification could also be passed during the pendency of the proceedings. It is contended that in any case the reference is still pending before the Commission where the petitioner in reluctant to appear and is delaying the process. It is contended that since order, dated 26-6-2003 is also an interlocutory order, the writ petition is not competent. It is further contended the suspension is not a punishment, therefore, the order impugned is neither a final order not punishment, therefore, it cannot be assailed. Reference in this context has been made to Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321, Capt. Muhammad Azhar v. Province of Punjab through the Secretary, Government of Punjab, Lahore and 2 others PLD 1975 Lab. 921, Pir Sabir Shah v. Election Commission of Pakistan and others PLD 1994 Lah. 516. Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC 867, Sheikh Iftikharud Din and another v. District Judge, Bahawalpur exercising power of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523.

 

  1. The respective contentions of the learned counsel have been considered. We think we should make it eminently clear that since the reference is still pending before the learned Commission we tend to exercise maximum restraint and avoid making any such comment or observation as may possibly affect the respective stance of the parties in the pending proceedings. We find that in the order passed by the learned Single Judge of this Court on 10-9-2002 in the habeas petition observations adverse to the petitioner were made but the Honourable Supreme Court of Pakistan while deciding Criminal Petition No.322 of 2002 on 20-9-2002 accepted the appeal of the petitioner partly. In paragraph 3 of the judgment of the Honourable Supreme Court of Pakistan it was noted that “the order in question generally and its portion relating to the suspension of the notification specially, has been challenged in the present petition. Learned counsel for the petitioner has vehemently contended that the High Court was not justified in suspending the notification in the proceedings in a petition under section 491, Cr.P.C. The learned counsel appearing on behalf of respondent No. 1 has submitted that since the petitioner by his conduct, has earned a disqualification under the law, therefore, pending disposal of reference against him by the Election Commission of Pakistan,, the suspension of notification as an interim measure, was not challengeable before this Court in this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973”.

 

It was, however, observed by their Lordships that “we having heard the learned counsel for the parties find no justification for interference in the order relating to the direction given by the High Court fore registration of case against the petitioner and others who were held responsible for keeping Muhammad Ashraf Shah son of Malik Shah and Mehmood alias Goga son of Muhammad Ashraf in illegal detention. However, the passing of an order relating to the suspension of the notification of the petitioner as Nazim of the Union Council while disposing of the petition under section 491 Cr.P.C was not proper The sending of reference to the Election Commission of Pakistan against the petitioner, an elected member in case of misconduct, would not be objectionable but suspension of the notification would amount to interfere in the functions of the Election Commission of Pakistan. The law has provided a complete procedure under section 161 of Punjab Local Government Ordinance. 2001, to be followed by the Election Commission of Pakistan in such cases, therefore, removal of an elected member from his office without following y said procedure, is not legal. The Election Commission of Pakistan has the exclusive jurisdiction of removal of an elected member if during the currency of hi tenure such member earns a statutory disqualification, therefore: the suspension of the notification in the nature of temporary removal of a member by the High Court would amount direct interference in the functions of Election Commission of Pakistan, a Constitutional institution”. (Portions underlined due to the relevancy). The observations so made by the Honourable Supreme Court of Pakistan have vital relevancy and nexus with the matter in issue. There may be no cavil that the power to remove an elected member, in duly and properly launched proceedings, can be exercised by following the procedure laid down by section 161 of the Ordinance. But such a removal is the ultimate and final result of the proceedings on its conclusion. The learned counsel for the respondents wanted us to assume that the availability of power of removal includes the power to suspend tie notification. The precedents cited by him Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321 and on Capt. Muhammad Azhar v. Province of Punjab through the Secretary, Government of Punjab, Lahore and 2 others PLD 1975 Lah. 921 concerned with the disciplinary proceedings against the Government servants. Referring to section 193 of the Ordinance it is sought to be urged that the Members, Nazims and Naib-Nazims and all those functionaries acting on behalf of a Local Government were to be treated as public servants. We are, however, unable to countenance such an assumed analogy inasmuch as merely that a Member of Nazim or Naib ­Nazim is to be treated as public servant within the meaning of section 21 would not denude them of their status, identity and standing as an elected “‘ office-holder for which different considerations have to be kept in view. In Abdul Wahid and another v. Din Muhammad and others PLD 1982 Lab. 168 a learned Division Bench of this Court had declined to grant interim injunction. It was observed that “He has, further, contended that in election matters, no interim relief is to be granted restraining an elected member from performing his functions because that will create A vacuum and difficulties for performance of public duties by public representative. The learned counsel referred to Rameshwar Das v. Yakin-ud-Din. Khan and another AIR 1924 Lah. 633 (2) E.M. Gopalakrishna Konar v. A. Vilanga Konar and another AIR 11932 Mad. 132 (3) and Shamsuddin Ahmed v. Charu Chandra Biswas and others AIR 1934 Cal. 621 (4) for the proposition that elected members were not restrained from performing their duties on the motion of their opponents who were asking for interim injunction before the final conclusion of the controversy It was thus observed that “it cannot be said that tile petitioners will suffer irreparable loss or grievous injury if the respondent No.1 performs his functions as ‘ a member of the Union Council. The judgment referred to by the learned counsel for the respondent No. 1 make it quite clear that elected office-holders are not to be restrained from performing their functions without final judgment and no interim injunction should be issued” (Underlined for emphasis). In Ch. Abdul Qadir v. The Election Tribunal and 3 others PLD 1984 Lah. 103 again a learned Division ‘Bench of this Court declined to issue interim injunction observing that “it is well-established that elected office-holders are ordinarily not to be restrained from performing their functions without final judgment and interim injunction in this respect is to be sparingly issued. From this we do not mean to hold that Election Tribunal has no jurisdiction to grant injunction if the circumstances of the case or the law warrants the grant of interim injunction. The reluctance of the Courts to interfere at that stage in election matters is due to the fact that in case injunction is granted restraining an elected member from performing his functions, it would create a vacuum and difficulties for performance of public duties by public representatives. The choice of the electors cannot be set at, naught except for very obvious causes or until the time that the assertions made, that the election had been procured through malpractices or by violating the law has been established”. Similar approach was adopted in Julius Salik v. Returning Officer and 27 others 1989 CLC 2499, Sardar Muhammad Abdullah Khan Tahir v. Sahibzada Muhammad Usman Khan Abbasi and 4 others 1998 CLC 612. The reliance of the learned counsel for the petitioner upon the order of the Honourable Supreme Court of Pakistan dated 7-10-2003 in C.P. No.2125 of 2003 is not without significance, wherein the Provincial Election Authority had proceeded to restrain the petitioner (therein) from performing any function as Nazim of the Town till the conduct of voting on their recall motion. On a petition qua the said order the High Court took the view that the Provincial Election Authority could exercise such a power of issuing restraint order where against the leave was granted by the Honourable Supreme Court of Pakistan and it was observed:–

 

“6.        As to interim relief, after hearing learned counsel for the parties, we are inclined to pass the order as prayed, for, the order passed by the Provincial Election Authority, has the effect of depriving the petitioner of exercising his powers and performing functions under the Punjab- Local Government Ordinance as Nazim though under the said provisions, he does not cease to be Nazim, till the passing of the recall motion by majority of the total number of members of the Union Council.

 

  1. Operation of the order/notification dated 23rd September, 2003 issued by the Provincial Election Authority, restraining the petitioner from performing any of his functions as Nazim of Data Gunj Bakhsh Town and consequential notification issued by the Provincial Government of the same date of appointment of Deputy Coordination Officer to perform functions of Nazim of the said town shall remain , suspended till. the disposal of appeal.”

 

The approach of the Honourable Supreme Court of Pakistan was consistent with the chain of precedents on the subject including the observations by the majority of the Bench in Syed Masroor Ahsan v. Muhammad Tariq Chaudhary and others 1991 SCMR 668 wherein an interim restraint order passed by the High Court had been assailed before the Honourable Supreme Court of Pakistan. It was observed that interim injunctions are not issued against the elected members. The restraint order issued by the High Court was thus, set aside. From the perusal of these precedents it is thus, manifestly clear that elected office-holders are not ordinarily restrained from performing their functions as an interim measures unless the final determination as to the disqualification or other allegations against them is made by the forum seized of the matter. There, are no special and exceptional features mentioned in the impugned order except reference to the observations of the learned Single Judge in the order, dated 10-9-2002 (made in the habeas petition), which order had to be read in the context of the order of the Supreme Court of Pakistan, dated 20-9-2002 (supra).

 

It may be observed that there is fixity of term of office provided by section 159 of the Ordinance. The rationale behind the view taken by the Courts seem to be that the confidence and mandate of the electorate is to be respected during the term of office of an elected office-holder, unless of course he incurs a disqualification and is found liable to be removed in accordance with law. In that eventuality the electorate will have the opportunity to exercise their vote afresh. But the exercise of power suspending the notification of election, which virtually amounts to removal from office, is not in consonance with the established principles as it will have the implications of grant of main final relief.

 

Insofar as the objection of the learned counsel for respondent No.2 that petition against an interlocutory order is not competent, is concerned, suffice it to observe that order, dated 18-4-2003 was affirmed by the learned Commission on 26-6-2003 and it partakes the nature of a final order insofar as the performance of functions as elected Nazim by the petitioner is concerned. The reliance of the learned counsel for the respondent upon Mian Ejaz Shafi’s case (supra) and Sheikh Iftikharud Din and another (supra) is inapt as both these cases arose out of recounting orders pending the election petitions and have thus no application to the peculiar facts and circumstances of this case. Likewise in Sabir Shah’s case (supra) the request for summoning of witnesses was declined by the Election Commission, which order was assailed through a writ petition, which was dismissed by this Court. The objection to the competency of the present petition thus has no real tenability.

 

In view of what has been stated above, we are of the view that in the circumstances the order passed by the learned Commission, suspending the notification of the petitioner’s election as Nazim of the Union Council, was not warranted and is legally unsustainable. It is thus, declared as of no legal effect. We have been informed that the next date in the Reference before the learned Commission is 23-4-2004 but some impression is being given that the petitioner is avoiding appearance. As per the learned counsel for respondent No.2 dilatory tactics are being employed by him to prolong the proceedings. Such an assertion is, however, not shared by the learned counsel for the petitioner. Suffice it ,to observe that the petitioner should appear on. the forthcoming date before the learned Commission so that the matter is taken to its logical conclusion expeditiously. In case what is apprehended by the learned counsel for respondent No.2 comes true, the Commission will make use of its lawful powers to proceed with the matter and decide the same in accordance with law.

 

The writ petition is accepted accordingly. No order as to costs.

 

M.A.W./A-70/L                                                                                   Petition accepted.