Malik SALEH MUHAMMAD GUNJIAL vs KAMRAN ELAHI BANDIAL and others

' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This appeal calls in question order, dated April 28th, 2006 passed by Election Tribunal, Lahore whereby on accepting the election petition dated 22nd November, 2002 filed by the election petitioner, the appellant has been de-seated from the seat of P.P.40, Khushab-II.

2. Precisely stating facts of the case are that election of the appellant was questioned by respondent Karam Elahi Bandial son of Malik Fazal Elahi Bandial principally on the ground that he being a deserter from Pakistan Air Force, was disqualified to contest the election. Appellant contested the petition inter alia raising objection that petition was not maintainable as the respondent had not signed and verified the schedule and Annexures to the election petition as provided by section 55(3) of the Representation of the People Act, 1976. It is important to note that with regard to the disqualification for his dismissal from service of Air Force, no categorical reply was submitted except stating "incorrect and denied".

3. Learned Election Tribunal on 17th March, 2003 framed issues arising out of the pleadings of the parties. At this juncture it is important to note that on 28th February, 2003 Civil Miscellaneous No,1 of 2003 was filed on behalf of the appellant seeking dismissal of the petition as the Schedule and Annexure had not been signed and verified. The objection was in consonance to the objection which had already been raised in the reply. Another Civil Miscellaneous No,2 of 2003 was filed on behalf of respondent seeking permission to amend the Schedule and Annexure to the election petition. Learned Tribunal disposed of both these applications on 9th June, 2003. Para. No,7, Therefrom is reproduced hereinbelow:-- "In the instant case also although the election petition is duly verified in accordance with law, yet the annexure have not been so verified. In view of the aforesaid authoritative judgment of the Honourable Supreme Court of Pakistan, I am inclined to dismiss the application filed by respondent No,1 (C.M. No,1 of 2003) and to accept that of the petitioner (C.M. No,2 of 2000) and hence I pass this order accordingly i.e, dismissing the application of respondent No,1 and accepting the application of the petitioner. The petitioner is allowed to amend the annexure/ schedules in accordance with law to the extent of their verification)."

' In the meanwhile evidence produced by the parties was also recorded. Surprisingly yet another Civil Miscellaneous Application No,3 of 2003 was filed on 29th September, 2003 by the appellant wherein dismissal of the election petition was sought for want of verification of pleadings. This application was followed by Civil Miscellaneous No,4 of 2003 dated 21st October, 2003 filed by the respondent with the prayer that he be permitted to bring on record the stamp of Oath Commissioner on the verification of the election petition. Both these applications were disposed of by the Tribunal on 2nd April, 2004. The appellant's application being Civil Miscellaneous No,3 of 2003 was held to be incompetent in view of the earlier decision dated 9th June, 2003 in Civil Miscellaneous Nos.1-2. Civil Miscellaneous No,4 of the respondent was disposed of as not pressed, because of the findings which had already been recorded by the Tribunal while disposing the earlier applications on 9th June,. 2003 in para.7 that election petition was duly verified in accordance with law. On the conclusion of evidence of the parties, learned Tribunal vide impugned judgment accepted the election petition of respondent as a result whereof the appellant was de- seated. Hence this appeal.

4. Learned counsel for the appellant contended that he has been wrongly de-seated on the ground that he was dismissed from service. According to him under section 20 of the PAF Act, 1953 a person can only be discharged and not removed because sections 38 and 73 prescribe that if a person deserts then his court-martial has to be conducted which is followed by conviction and thereafter he can be declared as deserter, therefore, according to him, appellant was not disqualified in terms of Article 63(1)(I) of The Constitution of Islamic Republic of Pakistan.

5. On the other hand learned counsel for the respondent contended that as far as the dismissal from service is concerned, it tantamounts to misconduct because evidence has come on record furnished by P.W.4 Sqr. Leader Muhammad Khalid Javed (Officer Incharge documents), besides, appellant himself has admitted, that he remained absent for a considerable period and for this reason he was dismissed from service.

6. We have considered arguments and have gone through the relevant provisions of Pakistan Air Force Act, 1953 (hereinafter referred to as "the Act"). Section 20 of the Act deals with dismissal from service of persons other than officers, There is no dispute that appellant remained absent for a considerable period and on account of this, fact he was dismissed from service as it is evident from the evidence of P.W. Muhammad Khalid Javed, referred to hereinbefore as well as the certificate issued by PAF according to which he was dismissed on 4th March, 1982 and the reason assigned for his dismissal was that it was under section 20(1) of the Act of 1953. As far as other document is concerned, its contents have not been denied by any of the parties, particularly, the appellant in his own statement has admitted this fact. Reference to the statement of P.W.2 would also be important to examine the arguments of the learned counsel for the appellant that such dismissal can take place only if a court-martial has been held under section 38 read with sections 73 and 79. This witness in cross-examination had stated that concerning all offences, penal action is taken by the Air Force, some times penal action also involves incarceration/confinement and even if penal action is not taken against any person, the offence still remains there. Now we have a glance at section 38 which deals in respect of desertion and aiding desertion. Under this provision any person who is subject to the Act, if deserts or attempts to desert the service, shall on conviction by court-martial, be liable to suffer long imprisonment prescribed therein and provided in section 73 of the Act. Admittedly in this case court-martial of the appellant was not held but it does not mean that he was not found guilty of absence from his service as this fact is indicative from the certificate which has been referred to hereinbefore. Appellant himself categorically admitted that he was dismissed on account of desertion. Relevant lines from his evidence read as under:-- "I was dismissed from Pakistan Air Force on account of `desertion', however, no allegation of immoral turpitude against me."

' Learned counsel has attempted to take out the case of the appellant from disqualification by making reference to Article 63(1)(i) of Constitution of Islamic Republic of Pakistan, 1973, which says that a person shall be disqualified to contest election, if he has been dismissed from service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal.

According to him no offence of misconduct has been proved against him. Suffice it to say in this behalf that absence from duty itself is a misconduct on behalf of a person in Government service as it has been held by this Court in the case of Secretary Education v. Mustamir Khan 2005 SCM R 17.

Relevant para. From the judgment is reproduced hereinbelow:-- "Probably it was not within the knowledge of the Minister that wilful absence amounts to misconduct on the basis whereof major penalty of dismissal from service can be imposed."

' Identical proposition in respect of a member of police force came for consideration before this Court in the case of Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369 wherein it has been held that such disqualification is to be treated life time disqualification as the same is self- acquired by a person who is suffering from the same himself. Therefore, we are of the opinion that since on merit the appellant was disqualified, the Tribunal has rightly accepted the petition filed by the respondent.

7. Now turning towards the arguments raised by the learned counsel for the appellant in respect of verification of the plaint, it is to be noted that in terms of relevant para., which has been reproduced hereinabove from the order, dated 9th June, 2003 the Court has held that as far as the petition is concerned, it is duly verified. As far as the question of non-verification of the annex and schedule is concerned, it has never been treated fatal by the Courts in view of the judgment reported as S.M.

Ayub v. Syed Ausaf Shah and others PLD 1967 SC 486 and Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCM R 250. Learned counsel contended that as the appellant had no remedy at the relevant time against the order, dated 9th June, 2003, therefore, same was not challenged. We are not in agreement with him because of the fact that knowing well that such observations had been made, the appellant himself moved yet another application on the ground that the plaint had not been verified being C.M.A. No,3 of 2003 on 29th September, 2003. The same was dismissed because of the previous findings recorded by the trial Court that the plaint was duly verified. Learned counsel for the appellant contended that the petition was filed challenging the order, dated 9th June,. 2003 but the same was withdrawn as the appellant had made a statement that he would agitate this point finally at the time of hearing. In this behalf it is to be noted that neither this fact has been mentioned in the petition nor any copy of the writ petition has been placed on record.

8. Thus, for the foregoing reasons, appeal is dismissed leaving the parties to bear their own costs.