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P L D 1999 QUETTA 1

SARDAR FATEH ALI KHAN UMRANI
V/S
CHIEF ELECTION COMMISSION OF PAKISTAN AND THREE OTHERS

Per Amir-ul-Mulk Mengal, C.J.(a) Constitution of Pakistan(1973) Arts 63-A, 127, 117 & 199
This notice has been issued by the Secretary-General J.W.P. It is also mentioned that he has been authorised by the Head of the J.W.P. Nawab Muhammad Akbar Khan Bugti under-Article (1) of Article 63-A of the Constitution. Although no authority letter letter has been placed before us that Nawab Muhammad Akbar Khan Bugti has indeed authorised the Secretary-General of J.W.P., but on the basis of such notice, proceedings of the Disciplinary Committee have been endorsed by the President of the Party himself who made the Reference with his signatures to the Speaker, which clearly shows that such authority had been give by the Head of the J.W.P. to Secretary-General of the said party. We have perused the Reference made by President of J.W.P. Nawab Muhammad Akbar Khan Bugti which is dated 23-2-1998. Therefore, the forum was not coram non judice.[p.9]A

“Notice” in strict sense means making something known to a person of which he was or might be ignorant. It is either statutory, actual or constructive. Of course this notice could be affixed on the main gate by Muhammad Saleem as envisaged under C.P.C. but ordinarily if notice is taken to a house and it is denied to be received it is deemed to be served upon the person against whom the same had been issued. Furthermore, the learned Chief Election Commissioner observed that the Secretary General of J.W.P. Mr. Khuda-I-Noor made an offer to serve notice on the respondent in the Court so that he might not be able to deny that he was not served with any notice. But present petitioner in presence of Chief Election Commissioner refused to accept the same. Thus, we are of the considered view that the petitioner had the knowledge of proposed action to be taken against him. He is now fighting his case on mere technicalities. In this background it cannot be held that the petitioner had no knowledge or was totally ignorant of the intended action to be taken against him. The principle of natural justice would be violated only when an action is taken against a person in absentia and without his knowledge.[p. 10]B

It is again impossible to believe that petitioner being an M.P.A. when attended the Assembly Session remained unaware of the Press Report that he had left Jamhuri Watan Party or he knew nothing that he has joined B.N.P. Rather he contradicted the news that he had sent Nawab Zulfiqar Magsi to Nawab Buti to pardon him. Moreover, he justified his action of leaving J.W.P. as per Press Reports of March, 1998. Keeping in view the aforementioned conduct of petitioner we are of the view that he did address a Press conference declaring to quit his party. He joined B.N.P. in the said Press Conference, which not only came in the Press, but in Radio and Television as well. As such we are not inclined to exercise our discretion in favour of petitioner.[p. 14]C.
It may be observed that there is no cavil that provisions of Article 63-A of the Constitutions applicable to the Parliament shall equally apply to the members of the Provincial Assembly by dint of Article 127(a) and (f) of the Constitution. However, the learned counsel lost sight of the fact that the provisions of Article 63-A or 14th Amendment Act. 1997 have not been stayed.[p. 15]D.

The petitioner had the knowledge at least at the time when he appeared before before the Chief Election Commissioner that a reference for his disqualification on the ground of his defection has been made by the Head of the Jamhuri Watan party, through the Speaker of Balochistan Provincial Assembly. Article 63-A(2) expressly provides a right of appeal within 7 days before the Head of the Party, he could, instead of coming the this Court, file an appeal before the Head of the Party and could explain his position that neither the defected the party nor he received any notice to the said effect. After the decision given by Head of the Party, the petitioner could approach this Court if he decision was against him.[p. 17]E

Lastly, as observed in PLD 1995 that “disloyalty, treachery and corruption form the rank and file of the elected members to both the Houses, defection, horse-trading or floor-crossing by the members elected on a party ticket is the odious type of corruption”So, on the principle that Courts should not lean to maintain ill-gotten gains may not exercise discretion in favour of those who, on one pretext or the other, indulged in floor-crossing. As such on this count too, we are not inclined to exercise discretion in favour of petitioner.

For all such reasons, we are inclined to dismiss the petition with costs. A copy of the judgment be sent to Chief Election Commissioner for further necessary action in accordance with law.[p. 17]F.

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