Malik AHMED KHAN AWAN vs MUNIR HUSSAIN SHAH and 3 others

' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 10-9-2002 passed by a learned Single Judge of Lahore High Court, Lahore, in Criminal Miscellaneous No,341-H of 2002 filed under section 491, Cr.P.C.

2. The habeas petition was filed by Munir Hussain Shah, respondent No,1 herein, against the present petitioner and respondents Nos.2 to 4 seeking direction for recovery and release of Muhammad Ashraf Shah son of Malik Shah and Mehmood alias Goga son of Muhammad Ashraf allegedly taken into custody by respondent No,3 at the instance of present petitioner, for recovery of certain amount as arrears of land revenue in connection with a private transaction between respondent No,1 and the detenus. The petitioner being the Nazim of the Union Council on an application moved by respondent No,1 against the above named two persons, for recovery of the amount in question, directed them to pay the said amount and upon their failure referred the matter to District Revenue Officer, Sheikhupura, for initiation of proceedings for recovery of the said amount as arrears of land revenue. In consequence thereto, Tehsildar concerned, respondent No,4 herein, while taking them into custody detained them at his place. The learned Judge in the High Court while disposing of application under section 491, Cr.P.C. Set the detenus at liberty with the conclusion that the petitioner and respondents Nos.2 to 4 through misuse of their authority as public officer, curtailed the liberty of detenus and kept them in illegal detention for the recovery of an amount relating to a private transaction between respondent No,1 and the detenus. Consequently, the learned Judge issued direction to the S.H.O. Concerned for registration of case against them and while suspending the notification of the petitioner as Nazim of the concerned Union Council, sent a reference to the Election Commission of Pakistan for initiating necessary proceedings for the removal of petitioner from the office of Nazim with the observation that he was guilty of committing an act of misconduct.

3. The order in question generally and its portion relating to the suspension of the notification of the petitioner specifically, 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.

4. 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 for 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 a 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 interference 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 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 his 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 to direct interference in the functions of Election Commission of Pakistan, a Constitutional Institution. The High Court undoubtedly in exercise of its powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can pass any interim order for the purpose of regulating the proceedings in a case pending before it but passing of an interim order in a matter which relates to the jurisdiction of another Constitutional forum, is riot proper exercise of the discretion under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

' For the foregoing reasons, we while converting this petition into appeal, set aside the impugned order relating to the suspension of notification of the petitioner and partly allow the same. There shall be no order as to costs.