P L D 1999 QUETTA 106

Per Iftikhar Muhammad Chaudhary, C.J.(a) Constitution of Pakistan (1973) Art. 199

Thus, under these circumstances, the findings of fact, recorded in this behalf by the learned C.E.C., deserve no interference or substitution, in exercise of extraordinary Constitutional jurisdiction, by this Court. [p. 115] A

(b) Constitution of Pakistan (1973) Arts. 2, 29, 63-A, & 199
r/w Qanun-e-Shahadat (10 of 1984)–

Thus, following the principle of law, enunciated by Hon’ble Supreme Court, concerning admissibility of a News item, published in the Newspaper, we are inclined to hold that News Item, dated 21st December, 1997, published in different Newspaper, to the effect; that petitioner has joined B.N.P., attracted the attention of general public, throughout the Constituency of PB-23 Nasirabad-I, from where the petitioner contested election, as well as the General Public and Communities of the Province, on account of which, they came to know that M.P.A. of J.W.P. had changed his loyalties from his party, on whose Ticket he was elected as M.P.A., and therefore, such news was admissible under Article 2 and 29 of the Qanun-e-Shahadat Order, 1984. It is important to note, that admittedly till today, the petitioner has not contradicted the News Item of 21st December, 1997 by addressing a Press Conference. Inasmuch as, in the memo. of Petition, it has not been stated anywhere that the petitioner is ready to denounce before the Correspondents of different Journals, in whose Newspapers, the news of his defection from J.W.P. was published. [p. 117, 118] B

(c) Constitution of Pakistan (1973) Art. 63-A
r/w Political Parties Act (III of 1962)—

It may be noted that to initiate proceedings against a Member of a Parliament or of a Provincial Assembly, under section 8-B of the Political Parties Act, 1962, the same are to be initiated before the Forum, prescribed by Article 63(2) of the Constitution of Islamic Republic of Pakistan. Whereas, for initiating disqualification proceedings, under Article 63-A(1) of the Constitution. Head of the Party, is required to make declaration, that a Member of parliament or of a Provincial Assembly, who has contested election on party ticket, has defected and Reference is to be made by him to the C.E.C. through Speaker of Provincial or National Assembly, for giving effect to such decision. [p. 119] C

(d) Constitution of Pakistan (1973) Arts. 63-A & 199

Be that as it may, in view of the facts and circumstances, discussed hereinabove, there is no hesitation in concluding that the petitioner in joining the B.N.P; had committed defection outside the House and not inside the House. Therefore, Explanation (a) to clause (1) of Article 63-A of the Constitution, has to be considered independently and in absence of any allegation of defection, contained in Explanations (b) and (c), it would be deemed that the petitioner is not guilty for defection; inside the House. As far as the defection outside the House is concerned, that is not cognizable by the Party Leader under Article 63-A of the Constitution. [pp. 122, 123]D
(e) Constitution of Pakistan (1973), Arts. 63-A & 199

As it has been pointed out hereinabove that in view of the above judgment presently the prevalling view is that a Member of the House can be disqualified for breach of party discipline in terms of paragraph (a), when the alleged breach relates to the matters covered by paragraph (b) and (c) to Explanation to clause (1) of Article 63-A and that the breach complained of, occurred within the House. As we have held hereinabove that the news published in different journals/newspapers, dated 21st December, 1997 to the effect that petitioner has joined B.N.P., prima facie, tentamounts to defection outside the house, therefore, no action could have been initiated against him within the meaning of Article 63-A of the constitution, and thus, the learned C.E.C. had no jurisdiction to disqualify the petitioner from the membership of the Provincial Assembly.

In view of the above discussion, we are inclined to hold that the notice dated 17-1-1998 was duly served upon the petitioner in pursuance whereof it was stated by the Authorised person, i.e., Secretary General on behalf of Party Leader, that petitioner has joined B.N.P. as reported in Press dated 21-2-1997; but as such action was not covered by Explanations (b) and (c) to clause (1) of Article 63-A of the Constitution, therefore, he was not liable to be disqualified from the Membership of Provincial Assembly from the Constituency PB-23 Nasirabad-I, in view of the judgment reported in PLD 1998 SC 1263.

Thus with above observations writ is issued. Consequently the impugned order dated 10-4-1999 is declared to have been passed by the Chief Election Commissioner of Pakistan, without lawful authority as such it is of no legal consequences. [p. 125] E

No order as to costs.
Petition accepted.

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