Javed Akbar Khan vs State & another.

JUDGMENT SHEET

PESHAWAR HIGH COURT D.I.KHAN BENCH

JUDICIAL DEPARTMENT

Cr Rev No. 11-D of 2014 with Cr Misc 211-D/14 Date of hearing 22.09.2014 Appellant / petitioner Javed Akbar Khan by Mr. Muhammad Ismail Khan Alizai Advocate. Respondent State By Mr. Adnan Ali Marwat AAG Syed AbidHussainBukhari and Kamran hayatMianKhel. Federal Standing Counsel for respondent No.2

ROOH-UL-AMIN KHAN J.-Petitioner,Javed

Akbar Khan, had filed nomination papers for contest of election, for the seat of Provincial Assembly from constituency No. PK-68 D.I.Khan. At the time of filing nomination papers, he had made a written declaration on oath that he was a graduate, qualified under Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 to contest the election and was not subject to any disqualification under Article 63 of the Constitution of Islamic Republic of Pakistan 1973. In support of his claim to be a graduate, he annexed a copy of Sanadpurportedly equalvent to graduate degree, duly issued by Darul- UloomMahmoodia, DhandiAzeem Abad Bannu, which was challenged by the contesting candidate and ultimately was declared fake and fictitious by

this court vide its judgment dated 7-12-2007 passed in Election Appeal No.1 of 2007. Consequently, the nomination papers of the petitioner were rejected and the Returning Officer concerned was directed to remove his name from the list of validly nominated candidates. The petitioner conceded the above mentioned order of this Court as well as rejection of his nomination papers, but in the next general election 2013 again poked his nose into the matter and tried his luck by filing nomination papers from PK-68 D.I.Khanciting therein his educational qualifications as BA. In the contest he conquered the combat and popularly elected, thus was declared as returned candidate, but the Apex Court vide order dated 9-7-2013 deseated him on the ground that once a disqualification is always disqualification. In pursuance of the aforesaid order, the Regional Election Commissioner D.I.Khan, being authorized by the Election Commission of Pakistan, lodged a complaint before the Sessions Judge D.I.Khan under section 94(2) of the Representation of People Act 1976, against the petitioner for commission of corrupt practices under section 78(3) (d) read with

sections 82 and 94 of theAct ibid, on the facts and allegations mentioned therein. Mr. Ilyas Ahmad Khan advocate High Court was nominated by the Election Commission as counsel for pursuing the case against the petitioner.

2.The complaint was contested by the petitioner wherein certain evidence were recorded, however, on 15th May 2014, the complainant substituted the counsel and nominated Syed AbidHussainBukhari advocate to conduct and pursue the case on behalf of the complainant/Election Commission of Pakistan, which displeased and persuaded the petitioner to raise an objection before the trial court about the nomination/appointment of another counsel, which he did, but was turned down by the trial court, vide order dated 26-6-2014, hence this petition.

3.Learned counsel for the petitioner in support of his claim argued that the Election Commission is not competent to lodge complaint and appoint private counsel/prosecutor to conduct the case against the petitioner. That an employee of

therespondent-department/complainant being a public servant is not vested with authority to lodge the criminal complaint or appoint a prosecutor, which is the job of Provincial or Federal Government.The appointment of prosecutor by the complainant for conducting trial against the petitioner is against the spirit of sections 492 and 493 Cr.PC, thus the order dated 15-5-2014 is bad in eye of law, be set aside.

4.Conversely, the learned Standing counsel assisted by counsel for the complainant supported the order of trial court and argued that Election Commission of Pakistan is an independent autonomous constitutional authority fully competent to lodge complaint against a person indulged in corrupt practices in any election and to nominate a private counsel for pursuing of the said complaint.

5.After hearing learned counsel for the parties, record perused , which divulge that the petitioner was charged for commission of corrupt practices, through lodging complaint by the Election Commission of Pakistan, in the court of Sessions Judge D.I.Khan and Mr.Ilyas Ahmad

Damaniadvocate was nominated as counsel to pursue the case on behalf of complainant, vide order dated 29-1-2014. The appointment/nomination order of the above said counsel is reproduced as below:- “To

Mr.Ilyas Ahmad, Advocate Peshawar High Court Bench D.I.Khan.

SUBJECT:COMPLAINTAGAINST JAVED

AKBAR KHAN MPA FOR CORRUPT

PRACTICE.

Dear Sir,

The Election Commission of Pakistan has nominated you to defend/pursue the matter cited as subject on behalf of the Election Commission of Pakistan against a professional fee of Rs. 15,000/- (Rupees fifteen thousands only) for the full trial of the case which you were good enough to accept in your written consent. This amount will be payable to you by the Election Commission of Pakistan after the case is finally disposed of. 50% fee will be payable if case is not decided on merit or withdrawn by the complainant at preliminary stage. No fee will be payable if the case is dismissed for non-prosecution or due to negligence by you. The bill may be sent to

the Election Commission in triplicate alongwith a duly stamped prepayment receipt and certified copies of judgment and decree, if any.

It will be appreciated if the Election Commission of Pakistan is kept informed of the progress in the matter from time to time. You will kindly apply to copies of judgment and decree immediately after the case is decided, particularly when the decision is adverse to the Election Commission of Pakistan and advise further course of action. Please note that you will not compromise the matter or allow a consent order to be made unless so authorized by the Election Commission of Pakistan in writing. Regional Election Commissioner D.I.Khan is being instructed to contact you, hand over the case papers and brief you on facts of the case.

Yours faithfully

Sd/- Sanullah Malik Director (Legal)

6.Since 3-1-2014, i.e. receipt of complaint by Sessions Judge, the learned counsel appointed/nominated vide order, supra was pursuing

and conducting the case before the Sessions Judge D.I.Khan, albeit formal charge against the petitioner was framed on 24-1-2014 and partial statement of complainant was recorded on 24-4-2014, while the case was put up for remaining statements and cross examination for next date. It was on 15-5-2014 that the complainant substituted his counsel and nominated Syed AbidHussainBukhari advocate to conduct the case on behalf of complainant which annoyed the petitioner. The contents of the letter dated 15/5/2014 are reproduced as under:- “ Most Immediate Through Fax/UMS

NO.F.3(7)/2013-Legal Election Commission of Pakistan

Secretariat, Constitution Avenue, G-5/2 Islamabad the 15th May, 2014.

To

The Regional Election Commissioner, D.I.Khan Division, D.I.Khan.

SUBJECT:COMPLAINT AGAINST JAVED

AKBAR KHAN MPA FOR CORRUPT

PRACTICE.

Dear Sir,

I am directed to refer to your No.F.6(77)/2013-14(REC) dated the 30th April,

2014on the subject noted above, the matter was placed before the Hon’able Commission for replacement of counsel. The Hon’able Election Commission has agreed and directed that “if the learned counsel is not taking interest in the case, then another counsel has to be engaged and matter be settled”. The Hon’able Commission has also approved the written willingness of Syed AbidHussainBukhari, Advocate to accept the case on behalf of the ECP.

2.You are, therefore, intimated to hire the services of Syed AbidHussainBukhari Advocate in the complaint case titled “REC D.I.Khan..Vs..Javed Akbar Khan MPA” for disposal of the complaint on merits at the professional fee of Rs. 15,000/- as already allowed for the counsel by the ECP and no extra amount will be paid to the newly engaged co9unsel with the request to settle the fee matter with previous counsel in writing to avoid any future complication by the said counsel.

Yours faithfully Sd/- Sanaullah Malik Director (Legal).

7.From the above given facts and record, it is manifest that initially Mr.Ilyas Ahmad Damaniadvocate was nominated as counsel by the Election Commission of Pakistan to conduct and

pursue the case on its behalf who performed his duties till29-5-2014, pertinently noted herewith that the entire proceedings conducted by him have not been objected by the petitioner, however, he retaliated and showed resentment, when SyedAbidHussainBukhari Advocate was nominated to pursue the case on the behest of Election Commission, who on 24/5/2014 entered appearance by filing power of attorney before the Sessions Judge D.I.Khan. Needless to mentionthat the nominations of both the counsel, i.e. superseded and substituted, are almost on the same terms and conditions.

8.Perusal of the order dated 15/5/2014 would reveal that the same has been issued in supersession of the previous order of Election Commission of Pakistan dated 29-8-2014, whereby the Election Commission of Pakistan has nominated M/S Ilyas Ahmad and Syed

AbidHussainBukhariadvocates pursuing and defending its case/complaint before the Sessions Judge D.I.Khan. It is nowhere mentioned that the above said advocates have been appointed as Prosecutors for conducting and prosecution of the

case. There is no cavil to the proposition that the Public Prosecutor is the sole authority to assist the Court in furtherance of justice and prosecute the case against the accused in criminal cases. It may also not be disputed that any counsel/advocate privately engaged by a party may only assist the Public Prosecutor and shall remain subordinate to him. But it is equally true that the scheme of Cr.P.C lays no bar on a private complainant to engage counsel of his own choice. Where a private person gets a vested right in the matter and any decision of the Court will affect his case considerably, such an

intervener/person may not be kept deprived of right of audience. Every complainant in a private complaint has a vested right to represent his case affectively before the court and he would always be at liberty to engage a counsel of his choice, but on his own cost. In the Code of Criminal Procedure, particularly in a private complaint like complaint under sections 3 and 4 of the Illegal Dispossession Act 2005, hurt cases and other cognizable and non- cognizable offences, the complainant would be either victim of offence or related to the victim, or

otherwise any aggrieved person. In such circumstances, he has a right to be heard and vindicated and the right to be heard impliesa right to be effectively represented at the hearing of the case, he has, therefore,a right to engage a counsel of his choice.

9.The argument of learned counsel for the petitioner is not convincing as to why the court should deprive the Election Commission of Pakistan from its right of engagement of advocate of its choice to conduct the case on its behest. Section 493 Cr.PC postulated in such a language and leads one to the conclusion that a private counsel can be engaged to perform all such acts vested in a duly appointed Prosecutor under section 492Cr.P.C under his guidance and supervision. The difference between the job description of Public Prosecutor and private counsel would be that the Public Prosecutor would not act as a counsel for any particular party and his conduct shall not be to aggravate the case against the accused, rather to act in aid of the court in discovery of truth, while the privately engaged counsel would promote the case of his client and the paramount

consideration before him would be to watch the interest of his client.

10.Coming to the other limb of arguments of learned counsel for the petitioner that the Regional Election Commissioner D.I.Khan being a public servant is not authorized under the law to file complaint against the petitioner, suffice it to say that the first two lines of the complaint are worth perusal which says that “the complainant/Regional Election Commissioner D.I.Khan who has been authorized by the Hon’able Election Commission of Pakistan (underlining is for emphasis)to lodge this complaint.

11.From the above referred para of the complaint, it is manifest that the Regional Election Commissioner D.I.Khan has lodged the complaint against the petitioner duly authorized by the Election Commission of Pakistan which is the creation of Constitution of Islamic Republic of Pakistan performing functions under it. The Chief Election Commissioner and Election Commission of Pakistan being absolutely independent with exclusive jurisdiction are performing their duties within the

terms of Part-VIII of the Constitution without interference of any other organ of the State. All the departments as well as the Federal and Provincial Governments, Law Enforcing Agencies and other relevant concerned quarters are under legal obligation to ensure the independent function of the Chief Election Commissioner/Election Commission. The Chief Election Commissioner/Election Commission is the sole authority to conduct every election in fair manner, preserving pureness, piety and the virtuality of eminent and exalted institution. It is also the foremost duty of the Election Commission to discharge its constitutional obligation to guard against the corrupt practices and launch prosecution of persons who stood accused of the commission of corrupt practice. The Election Commission is the competent authority to take crucial steps towards ensuring the transparent election and to disallow and discourageanymalpractice by launching prosecution of a person indulged in it. The Apex Court, in the case titled Muhammad Rizwan

Gill...Versus...Nadia Aziz and others (PLD 2010 Supreme Court 828),while strengthening thehands

ofElectionCommission/Chief Election Commissionerand to curb the menace of corruption with iron hand, was pleased to observe in the following words:-

“The Election Commission is, therefore, directed to initiate action against all such persons who are accused of commission of corrupt practices; of committing forgery and of using as genuine, documents which they knew or at least had reason to believe to be forged. The Election Commission shall ensure that the investigations in these matters are conducted honestly, efficiently and expeditiously and shall depute one ofitssenior officers tosupervise the same.The learned Sessions Judges to whom these trials shall then be entrusted are also directed to conclude the same without any delay, in consonance with the spirit of the

Election Laws as displayed, inter alia, by the Provisos newly added to

subsection (1-A) of section 67 of the said Act of 1976 through the

amending Act No.IV of 2009

promulgated on 2-11-2009. In any

case it should not take each learned Sessions Judge who gets seized of the matter, more than three months to

conclude the same”.

12.The careful perusal of above quoted para, wherein principles for initiating action against a wrong doer have been laid down by the August Supreme Court of Pakistan would indicate that the Election Commission/Chief Election Commissioner being an independent constitutional authority is clothed with the powers to file complaint before the competent court of law against the person found indulged in commission of corrupt practices.

Likewise, in case

titledMianNajibuddinOawaisi...Versus...AamirY ar and 7 others (2011 SCMR 180), the election ofAamirYaras returned candidate to the Parliament

from NA-184 Bahawalpoor was challenged on the ground that he had procured a bogus BA degree from University of Baluchistan and on the strength of it, he had successfully contested the election. The august Supreme Court, while referring to the judgment rendered in case titled NawabzadaIftikhar Ahmad...Versus...The Chief Election Commissioner (Civil Petition No.287 of 2008 decided on 25/3/2010), wherein the significance of the country had been highlighted, was pleased to observe in the following words:-

“In instant case we are of the

opinion that in view of given facts and circumstances of the case

which have been reproduced

hereinabove, prima facie, it

appears that the matter is required to be dealt with by Chief Election Commissioner in accordance with

the provision of section 78 of the ROPA, 1976 etc; details of which

have already been mentioned in

above judgment. Therefore, in

discharge of our constitutional and legal duty, we direct the Chief

Election Commissioner to proceed

accordingly against respondent

No.1, AamirYar, following the

observations already made in the

judgment.”

13.Resultantly, in the backdrop of the directions of the August Supreme Court of Pakistan in judgment supra, the Election Commission of Pakistan was feeling hesitation or difficulty in lodging criminal proceedings against the person of corrupt practices in respect of educational qualifications, therefore, filed civil miscellaneous application for clarification as to whether the Chief Election Commissioner individually and independently could proceed to get supra judgment implemented in light of the constitutional and legal provision enumerated therein.In the above referred CMA No. 2941 of 2010 in Civil Appeal No. 191-L of 2010,

titledMianNajibuddinOawaisi..Versus...AamirYar and others (PLD 2011 Supreme Court 1), the

august Supreme Court was pleased to observe that there is no bar in lodging the complaint against the remiss either by the Commission or by the Commissioner and by an individual in respect of offences made cognizable under section 82 of the People Representation Act 1976. The relevant para of the above referred judgment is reproduced as under:-

“Thus, a comparative study of both the above noted sections 94 and 95 of the Act, 1976 would indicate that there is no bar in lodging complaint either by the Commission or by the Commissioner and by an individual in respect of offences made

cognizable under section 82 of the Act. Therefore, in view of the above provisions of law it is clarified that the Chief Election Commissioner (the Commissioner) or the Commission

both are competent to lodge the

complaint notwithstanding the

observation made in the judgments

passed by this Court noted

hereinabove. Having made the

clarification hereinabove, it is further clarified as regards sections 94 and 95 of the Act 1976 that for the purpose of section 78(3)(d) notwithstanding

the Commission or the Election

Commissioner or any individual or

any other person can lodge the

complaint. The application stands

disposed of in above terms.”

14.Perusal of the above judgment leads one to the conclusion that the Election Commission/Chief Election Commissioner is fully empowered to lodge the complaint against the corrupt persons and similarly being an independent constitutional authority can engage and appoint a private counsel/pleader of its choice to conduct and assist prosecution in any case on its behalf.Besides, Chapter-VIII of the Representation of People Act, 1976 relates to offences falling within the ambit of corruption, illegal practice, bribery, influence and personation. It also prescribe the penalty for the

offences committed in relation with election. The offences enumerated in Chapter-VIII have been made cognizable under section 94 of the Act ibid, perusal whereof indicates that for invoking the jurisdiction of Sessions Judge, even an individual can lodge the complaint. It would be appropriate to reproduce section 94 which reads as under:-

“Certain Offences cognizable--

(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence punishable under

(section 80-A) or section 82 (or section 82-A) or section 85 or sub-section(1) of section 87 shall be cognizable offence.

(2)Notwithstanding anything

contained in this Act or any other law for the time being in force, the offences of corrupt practice shall be tried by the Sessions Judge and an appeal against his order shall lie before a Division Bench of the High Court.

(3)Where proceedings against a person for being involved in corrupt practice are initiated on a complaint made by a private individual, and such person is convicted by the court and his conviction is maintained in final appeal, the complainant may be entitled to such reward payable out of the amount of fine as may be imposed by the court;

Provided that where such

complaint proves to be false, malafide or is made for any ulterior motive to provide benefit to another person, the complainant shall be punishable with imprisonment for a term which may extent to threeyears, or with fine, or with both”.

15.From bare reading of subsection (3) of section ibid, it is manifest that proceedings against a person for being involved in corrupt practice may be initiated on a complaint made by a private individual

and in case of success of complaint on conviction of the accused, the complainant may be entitled to get certain portion of amount of fine, imposed by the trial court. Vice versa, if the complaint proves to be false, based on malafide, for any ulterior motive, the complainant shall be liable to be punished with imprisonment, with fine or with both. Eventually, if the private individual is vested with the authority to lodge a complaint against a person for being involved in corrupt practice, he is equally vested with unalienable right to prosecute his case personally or through a pleader/advocate. It is the fundamental right of every person to be provided ample opportunity of presenting his case before the court of law. The Act ibid coupled with the provisions of Criminal Procedure Code does not impose any embargo on engagement of private counsel by any individual or complainant in a criminal case. Thus the argument of learned counsel for the petitioner that the complainant has no power to appoint public prosecutor is misconstrued and misunderstood.

Perusal of the appointment/nomination letter reproduced in the preceding para shows that the

complainant has never appointed any public prosecutor for prosecution of the complaint, rather has nominated a counsel to conduct and pursue the case on his behalf. The scheme of Criminal Procedure Code has never debarred the engagement of private counsel for prosecution of complaint. If the argument of learned counsel for the petitioner is accepted, it shall make subsection (3)alongwith proviso of section 94 as superfluous and redundant, while the redundancy could not be attributed to any provision of Statute, unless it did not fit in the whole scheme of such a Statute.

16.In view of the above and deriving wisdom from the dictum of august Supreme Court referred above, the instant petition being devoid of merit is dismissed.

ANNOUNCED JUDGE