MUHAMMAD RAFIQ Versus COMMISSIONER, SARGODHA DIVISION
This matter arises from a petition for leave to appeal against the dismissal of a writ petition by the Lahore High Court, which upheld the removal of the petitioner from his office as a member of the Municipal Corporation, Faisalabad, following his conviction by a Summary Military Court under Section 165-A of the Pakistan Penal Code. The core legal question concerned whether the High Court properly exercised its discretionary constitutional jurisdiction in declining to interfere with the order of removal and whether adequate opportunity of hearing was afforded. The Supreme Court held that the High Court committed no error or contravention of judicial principles in refusing to interfere under its discretionary jurisdiction, particularly given the petitioner's own admissions and the fact that he was convicted by a competent forum after a raid supervised by a Magistrate. The key principle laid down is that the Supreme Court will not interfere with the High Court's refusal to exercise discretionary constitutional jurisdiction against the removal of a local government representative where findings of fact, admissions, and valid convictions support the administrative action.
- Whether the High Court properly exercised its discretionary constitutional jurisdiction in declining to interfere with the removal of a municipal councillor?
- Does a conviction by a Summary Military Court for corruption constitute valid grounds for removal under the Punjab Local Government Ordinance 1979?
- Whether a petitioner is entitled to interference in constitutional jurisdiction when material admissions are contained in their reply to a show-cause notice?
- Section 165-A, Pakistan Penal Code 1860
- Section 29(1)(c), Punjab Local Government Ordinance 1979
ORDER
1. MUHAMMAD AFZAL ZULLAH , J .‑‑ Leave to appeal has been sought from judgment, dated 19‑10‑1981 of the Lahore High Court, whereby a writ petition arising out of an election matter was dismissed.
2. The petitioner who was a member of the Municipal Corporation, Faisalabad, contested the election for the office of the Mayor of Faisalabad, but lost the same. Mr. Riaz Shahid was declared elected. It is the petitioner's case that on account of this last mentioned election, Mr. Riaz Shahid became his deadly enemy and on account of that motive, the petitioner was involved in a case under section 165‑A, P.P.C. read with M.L.O. 253/M.L.R. 36/14. The petitioner was tried by, Summary Miltary Court and sentenced to one year's R.I. and a fine of Rs. five lacs. On a petition to the Deputy Martial Law Administrator, the imprisonment was reduced to one already undergone. The sentence of fine was also reduced to Rs. one lac. In the meanwhile, a show‑cause notice was issued to the petitioner by the first respondent, which reads as follows:‑
3. "Whereas you Mr. Muhammad Rafique, Councillor, Municipal Corporation, Faisalabad, offered illegal gratification of Rs. one lac to Mr. Muhammad Riaz Shahid, Mayor, Municipal Corporation, Faisalabad, for showing you undue favour in connection with ratable increase of the Octroi Schedule of the Corporation; And whereas you were tried by a Summary Military Court in the said case under section 165‑A of the P.P.C. for abetting the Mayor, Municipal Corporation, Faisalabad to take this gratification of Rs. one lac;
4. And whereas you have been found guilty of misconduct within the meaning of section 29(1)(c) of the Punjab Local Government Ordinance, 1979;
5. You are, therefore, called upon to show case within fifteen days as to why you should not be removed from the membership of Municipal Corporation, Faisalabad.
6. The petitioner submitted his detailed reply wherein it was asserted that he had been falsely implicated on account of the enmity of the Mayor. He, however, admitted that at the time of the raid (which was supervised by a Magistrate) he was found in the house of the Mayor, who according to his version, was his enemy. He also admitted that at the relevant time he had with him an amount of Rs.1,01,300 out of which Rs. one lac, it is alleged, were offered to the Mayor as a bribe. In the reply he sought personal hearing as also permission to seek legal assistance.
7. The Commissioner (respondent No.1) afforded the petitioner opportunity of hearing. According to the learned Advocate‑General, the petitioner had also engaged a counsel, who assisted him. During the said personal hearing, the only plea raised from the petitioner's side was that his conviction by a Military Court for the offence of corruption should not be taken note of, because he had filed an appeal before the Headquarter, D.M.L.A,. Sargodha, against his conviction. The Commissioner was not satisfied with the plea taken before him. He accordingly, while taking note of the conviction by the Military Court held that the petitioner is now unfit to hold the office of a Municipal Councillor.
8. The order of the Commissioner was brought under challenge in an appeal which was dismissed by the Secretary, Local Government (respondent No.2). He then challenged both the original as also the appellate orders in the High Court in its constitutional jurisdiction but without any success.
9. A serious contention raised before the High Court that the petitioner was not afforded opportunity of hearing which was essential before finding him guilty of misconduct, was repelled on findings of fact. With regard to the merits, the High Court observed that "the raiding party including a Magistrate, heard him (the petitioner) in committing the crime and recovered the amount. He was tried by the Summary Military Court and found guilty." In the background of all these circumstances, the learned Judges observed that 'the removal from representative office by the competent authority cannot be interfered with by the High Court in the circumstances of the case in exercise of constitutional jurisdiction." The petition was accordingly dismissed in limine.
10. Learned counsel for the petitioner has advanced several arguments in support of the grounds taken in this petition. Learned Advocate General corrected him on some factual questions and had also replied to the questions raised from the petitioner's side. It cannot be denied that the jurisdiction of the High Court invoked by the petitioner is discretionary. In the circumstances of this case, the High Court did not consider it proper to interfere with the order of removal of the petitioner from the representative office .
11. After hearing the learned counsel, we do not find any justification to hold that in the exercise of its discretion, the High Court has contravened any judicial principle. After going through the record (particularly the written reply to the show‑cause notice submitted by the petitioner before the Commissioner, which contains admissions and assertions from which proper inferences could be drawn against him), we do not consider it a fit case for grant of leave to appeal. In this view of the matter. It is not necessary to examine the arguments and other contentions raised in this matter. This petition accordingly is dismissed.
12. S.Q./4447/S Leave refused.