P L D 2012 Balochistan 1
Before Qazi Faez Isa, C J and Mrs. Syeda Tahira Safdar, J
OBAIDULLAH ---Petitioner
Versus
Senator MIR MUHAMMAD ALI RIND and 2 others ---Respondents
Constitutional Petit ion No.626 of 2009, decided on 25th August, 2011.
(a) Interpretation of Consti tution --
---Two provisions in a statute ---Effect ---Every effort should be made to reconcile two
provisions rather than to attribute redundancy to any provision of the Constit ution.
(b) National Accountability Ordinance (XVIII of 1999) ---
----S. 15, proviso --- Constitution of Pakistan, Art.63(1)(h) ---Conviction and sentence -
Disqualification -Starting date ---Respondent was convicted and sentenced by
Accountability Court and was disqualified under S.15 (a) of National Accountability
Ordinance, 1999, for a period of ten years, to be reckoned from the date he had
discharged his liabilities -Effect ---Ten years period started to run from 18 -6-2001, the day
when respondent paid fin es/discharged his liabilities and would last till 17 -6-2011 ---On
the day i.e. 11 -2-2009, when respondent submitted his nomination form to contest for
Senate seat, he could not have done so .
(c) Constitution of Pakistan --
----Arts. 62(1)(d)(h) & 199 ---National Accountability Ordinance (XVIII of 1999), S. 9
(a)---Constitutional petition -Quo warranto, writ of -Good character -Proof ---Corruption
and corrupt practices ---Conviction - False affidavit -Respondent filed false affidavit, at the
time of nomination f or election to seat of Senate, suppressing the fact that he had been
convicted and sentenced by Accountability Court on the charge of corruption and corrupt
practices -- Respondent was convicted for corruption and embezzling/stealing from public
exchequer, which allegations he had accepted, thus could not be categorized to be "of
good character" or "is not commonly known as one who violates Islamic Injunctions" and
attracted the bar contained in Art.62(1)(d) of the Constitution ---Validity ---Under
provision o f Art.62(1)(d) of the Constitution the disqualification was not time -related but
perpetual ---Respondent had admittedly made false statement on "Declaration and Oath"
and such false declaration on oath was not permissible in Islam and respondent would run
foul of Art.62(1)(d) of the Constitution ---Two convictions for corruption, embezzlement
and misappropriation of public money and for knowingly making a false declaration on
oath could not be stated to be "good character" or someone who "is not commonly know n
as one who violates Islamic Injunctions" in terms of Art.62(1)(d) of the Constitution ---
Respondent did not qualify to be elected, chosen or continue as member of Parliament ---
High Court declared that respondent was not qualified to seek office of Senator and
directed the respondent to surrender all payments and benefits received by him or
expended on his behalf when he acted as Senator, including salary, rent, travelling
allowance and daily allowance ---Concerned Government was also directed to take action
against respondent, in case he would fail to return the benefits derived by him and the
government would also be within its rights to prosecute the respondent for filing of a false
nomination Form --- Petition was allowed accordingly.
Muhammad Ali Rind v. Zahoor Ahmed PLD 2008 SC 412; Begum Shamsunehar
v. The Speaker East Pakistan Provincial Assembly PLD 1965 SC 120 and Shahid Nabi
Malik v. Chief Election Commissioner PLD 1997 SC 32 ref.
Nadir Ali Chalgari for Petitioner.
Amanullah Tareen, Addl. A.G. for Official Respondents and Syed Mansoor Shah
and Amir Muhammad Jogezai, Special Prosecutor NAB and Syed Ayaz Zahoor and
Kamran Murtaza for Respondent No.1.
Date of hearing: 22nd August, 2011.
JUDGMENT
QAZI FAEZ ISA, C J. ---That the petitione rs seek a writ of quo warranto to be
issued against Senator Mir Muhammad Ali Rind (hereinafter referred to as "the
respondent No.l." or "Mr. Rind") who, according to the petitioners, could not be elected
as Senator as he had been convicted and disqualified for a period of ten years in two
different cases. The petition was filed on 14th October 2009 and for almost two years Mr.
Rind managed to avoid service of notice. Notices were also issued to Mr. Rind for service
through the Senate Secretariat, but the sa me could not be served on the pretext that he
was on leave or that the Senate was not in session. Eventually notices were published in
three daily newspapers, including daily Jung of 29th June 2011, compelling Mr. Rind to
finally emerge from the shadows, a nd on 28th July 2011 he appeared in court, but stated
that he did not have a copy of the petition, which was provided to him in Court and he
sought time, which too was granted.
2. The respondent No. 1 has not filed a counter affidavit and not denied the co ntents
of the petition. The case of the petitioners is that Mr. Rind was convicted in the following
two criminal cases:
(1) Reference No.2 of 2000 in the Accountability Court Balochistan, Quetta, under
section 10(a) of the National Accountability Ordinance , 1999 (hereinafter "the
Ordinance") and convicted for three years rigorous imprisonment and fine of
Rs.900,000 (Rupees nine hundred thousand only) and in default of payment
of fine for further imprisonment of one year; and
(2) Referenc e No.3 of 2000 in the Accountability Court Balochistan, Quetta, under
section 10(a) of the Ordinance and convicted for nine years rigorous imprisonment
and fine of Rs.30,000,000 (Rupees thirty million only) and in default of payment
of fine for further imp risonment of three years.
3. In both the above mentioned cases Mr. Rind was disqualified for 21 years from
taking part in any national, provincial and local bodies election and further barred to hold
any public office. Mr. Rind filed appeals against his co nviction, respectively Ehtesab
Appeals Nos.3 and 4 of 2000. He, however, did not contest the appeals and instead
entered into plea -bargaining with the prosecution, the National Accountability Bureau
("NAB"), pursuant to 25 of the Ordinance ("NAB") accepted the plea -bargaining request
of Mr. Rind upon deposit of the said amounts of Rs.900,000/ - and Rs.30,000,000/ - and
subsequently two applications bearing Nos.46 of 2001 and 47/2001 were submitted
respectively in Ehtesab Appeals Nos.3 and 4 of 2000) to this c ourt and vide Order dated
20th June 2001 the applications for plea -bargaining were accepted and the sentence
awarded to Mr. Rind in both cases was reduced to that already undergone and the bar to
contest elections or to hold public office for twenty one ye ars was reduced to ten years.
To further satisfy ourselves about the aforesaid matters we sent for the files of the above
mentioned two Ehtesab Appeals, which confirmed the said facts. Mr.Rind paid the said
amounts on 18th June 2001.
4. It is further state d in the petition that Mr. Rind attempted to contest the 2008
General Elections from the Balochistan Provincial constituency B.P.49 Kech (II) but his
ability to do so was challenged on account of the abovementioned two convictions and
resultant disqualific ations. The Returning Officer rejected Mr. Rind's nomination papers,
against which order Election Appeal Nos.82 and 83 of 2007 were preferred to this court,
but the same were dismissed vide common judgment dated 14th December 2007 and
consequently petition s were filed before the Hon'ble Supreme Court, which too were
dismissed. The said judgment of the apex court is reported as Muhammad Ali Rind v.
Zahoor Ahmed, PLD 2008 Supreme Court 412, and it was inter alia held therein, that:
"The petitioner [Mr. Rind ] under Article 63 (h) and (i) has earned disqualification
of the nature by virtue of which he would be debarred to contest the election."
5. Mr. Rind had attempted to contest the 2008 General Elections despite his
convictions and disqualifications, but wa s found out and stopped. However, Mr. Rind was
not one to sit at home. Despite being disqualified for a period of ten years, he again
submitted a Nomination Form on 11th February 2009 for the Senate Elections of 2009. In
the Nomination Form he audaciously declared on oath that he was not convicted of any
criminal case. He further declared on oath, that:
"I fulfil the qualifications specified in Article 62 of the Constitution and I am not
subject to any of the disqualifications specified in Article 63 of th e Constitution or
any other law for the time being in force for being elected as a member of the
Senate."
6. Mr. Nadir Ali Chalgari, learned counsel for the petitioner No.2 contended that in
view of the abovementioned convictions, the earlier rejection of his Nomination Form, in
view of sections 9, 10 and 15 of the Ordinance and Articles 62 and 63 of the Constitution
of Pakistan Mr.Rind could not have contested for the Senate of Pakistan and his holding
the public office of Senator was unethical, immoral, i llegal and unconstitutional and
therefore this court in exercise of its powers under Article 199(b)(ii) should order
his removal. Syed Mansoor Shah, Senior Special Prosecutor NAB adopted the
arguments of Mr.Chalgari and further stated that under cover of letter
No.0320/DGS/Legal/NAB(B)/2009/665 dated 26th January 2009 NAB had provided a list
of convicted persons, which included respondent No.1, to the Chief Election
Commissioner, Islamabad (respondent No.2) for "taking appropriate action." The
Provincial Election Commissioner, on behalf of himself and the respondent No.2 filed
'para -wise comments' which mostly stated, "no comments for want of knowledge,"
despite the receipt of the aforesaid letter. Mr. Amanullah Tareen, learned Additional
Advocate General supported the petition and referred to the relevant provisions of the
Ordinance and the Constitution of Pakistan. It has been contended that the following
provisions of Articles 62 and 63 of the Constitution of Pakistan, as they stood at the
relevant time, i.e. prior to the Constitution (Eighteenth Amendment) Act, 2010, are
attracted in the case of Mr. Rind:
"62(1) A person shall not be qualified to be elected or chosen as a member of Majlis -e-
Shoora (Parliament) unless --
(d) he is of good c haracter and not commonly known as one who violates Islamic
Injunctions;
(g) he has not been convicted for a crime involving moral turpitude or for giving false
evidence;
"68(1) A person shall be disqualified from being elected or chosen as, and from being ,
a member of Majlis -e-Shoora (Parliament) if --
(h) he has been convicted by a court of competent jurisdiction on a charge of corrupt
practice, moral turpitude or misuse of power or authority under any law for the
time being in force."
7. Mr. Ayaz Zahoor a nd Mr. Kamran Murtaza appeared for respondent No.l. and did
not dispute the facts, but stated that the case of Mr. Rind fell under Article 63(1)(I), as it
stood at the relevant time and prior to the Eighteenth Amendment, and not as alleged
under Ar ticles 62(1)(d) or (g) or Article 63(1)(h). Article 63(1)(1), which they have
referred to, is reproduced hereunder:
"63(1). A person shall be disqualified from being elected or chosen as, and from,
being, a member of Majlis -e-Shoora (Parliament) if --
(1) he is found guilty of corrupt or illegal practice under any law for the time being in
force, unless a period of five years has elapsed form the date on which that order
takes effect."
It was contended that under Article 63(1)(1) the stipulated five years h ad elapsed,
therefore, Mr. Rind had become eligible, by efflux of time, to contest election. Reliance
was also placed on the case of Begum Shamsunehar v. The Speaker East Pakistan
Provincial Assembly, PLD 1965 Supreme Court 120 and Shahid Nabi Malik v. Chi ef
Election Commissioner, PLD 1997 Supreme Court 32 to advance the contention that the
Constitution should be interpreted as a harmonious whole and in accord with the manifest
intention of the Legislature.
8. The question that requires consideration is wh ether Mr. Rind stood disqualified
from contesting the Senate of Pakistan elections. Article 62 of the Constitution of
Pakistan prescribes certain qualifications for members of Parliament. One prerequisite
provides, that a candidate must not have "been conv icted for a crime involving moral
turpitude or for giving false evidence" (Article 62(g). This qualification has been removed
by the said Eighteenth Amendment, however, at the relevant time, that is at the time Mr.
Rind submitted his Nomination Form, it fo rmed part of the Constitution. Article 63 of the
Constitution provides the eventualities that shall disqualify a person from being elected or
chosen, and from being, a member of Parliament. Article 63(1)(h), as it stood at the
relevant time, stipulated, th at a person be removed from office if, "he has been convicted
by a court of competent jurisdiction on a charge of corrupt practice, moral turpitude or
misuse of power or authority under any law for the time being in force." This clause has
been watered dow n by the Eighteenth Amendment and now provides that only a minimum
conviction of two years would attract the disqualification and it would last for a period of
five years from the date of his release.
9 Mr. Rind does not dispute the fact of his two convic tions. It however needs
examination whether the convictions were in respect of crimes involving moral turpitude
in terms of Article 62(g), and if so, whether Mr. Rind could have contested elections. Mr.
Rind may also lose his Senate seat if, in terms of Ar ticle 63(g)(h) "he has been convicted
by a court of competent jurisdiction on a charge of corrupt practice, moral turpitude or
misuse of power or authority under any law for the lime being in force." The question to
be considered is whether, as alleged by the learned counsel for respondent No.1 Article
63(1)(1) and not Article 63(1)(h) is attracted. The difference between the two is that
Article 63(1)(h) is in respect of a conviction by a competent court of law and in respect
of a charge of corrupt practic e, moral turpitude or misuse of power or authority whereas
Article 63(1)(1) is in respect of having been found guilty of corrupt or illegal practice. In
Article 63(1)(1) there is no reference to a competent court of law and it also excludes
charge of moral turpitude or misuse of power or authority. Accordingly, applying the
principle as enumerated in the aforesaid judgment every effort should be made to
reconcile the two provisions rather than to attribute redundancy to any provision of the
Constitution. A person may be found guilty of corrupt or illegal practice by a forum or
tribunal which is not a competent court of law, which could be by for instance by the
Sales Tax, Income Tax or Customs Appellate Tribunal or even by martial law authorities
in the past . The finding by such tribunal or authority could, in terms of Article 63(1)(1),
only be in respect of corrupt or illegal practice but not in respect of moral turpitude or
misuse of power or authority. If these classifications are considered then the conv ictions
awarded to Mr. Rind cannot be stated to fall within the purview of Article 63(1)(1). On
the other hand each and every ingredient of Article 63(1)(h) is fulfilled, in that the
convictions of Mr. Rind were by an Accountability Court, the judge of whi ch was
appointed by the President of Pakistan in consultation with the Chief Justice of the High
Court (section 5(g) of the Ordinance) and thus would be covered by the term - competent
court of law. Secondly, the offences for which Mr. Rind was convicted were the offences
of corrupt practice, moral turpitude or misuse of power or authority as defined under
section 9 of the Ordinance. Thirdly, the convictions were under the National
Accountability Ordinance, 1999, and thus also fulfil the third condition of - under any law
for the time being in force. Any other interpretation would attribute redundancy to
Article 63(1)(h), and thus inter alia violate the ratio of the above mentioned cases, that the
Constitution should be read as a harmonious whole and also negate the intent of the
Legislature.
10. The record reveals that Mr. Rind was convicted for the offence of corruption and
corrupt practices, as defined under section 9 of the Ordinance. Section 10(a) of the
Ordinance prescribes the punishment for the said offence which may extend to 14 years
and with fine. In Reference No.2/2000 the learned judge convicted Mr. Rind, for having
"seven Government vehicles unauthorisedly" in his capacity as Food Minister and
"drawing fuel and repair charges for which he was n ot entitled." And in Reference
No.3/2000 he was found guilty of corruption and embezzlement. The said convictions are
crimes of moral turpitude, thus attracting the bar contained in Article 62(g) of the
Constitution of Pakistan therefore Mr. Rind was clear ly not qualified to submit
Nomination Form and participate in the Senate election and become a Senator.
11. Mr. Rind would also attract disqualification pursuant to Article 63(1)(h), as
"he has been convicted by a court of competent jurisdiction on a charge of corrupt
practice, moral turpitude or misuse of power or authority under any law for the time being
in force," i.e. the National Accountability Ordinance, 1999. The disqualification under the
Ordinance was for a period of 10 years. The proviso to section 15(a) of the Ordinance
stipulates that the said period will "be reckoned from the date he has discharged his
liabilities," accordingly, the ten year period would start to run from 18th June 2001, the
day when Mr. Rind paid the fines/discharged his liabilities and would last till 17th June
2011. Therefore, on 11th February 2009, the day he submitted his Nomination Form to
contest for a Senate seat. Mr. Rind could not have done so.
12. There is also another aspect to consider. In view of the convictions of Mr. Rind for
corruption and embezzling/stealing from the public exchequer, which allegations he has
accepted, the question arises whether, being a Muslim, he can be categorized to be "of
good character" or someone who "is not commonly kn own as one who violates Islamic
Injunctions" and thus attract the bar contained in Article 62(1)(d) of the Constitution.
This provision has not been changed by the Eighteenth Amendment. The disqualification
under this provision is not time -related, but per petual. Quranic teachings promote an
ethical framework for human behaviour. Almighty Allah describes believers as, "Those
who are faithfully true to their Amanat and to their covenants" (Surah al -Mu'minun,
23:8). The Almighty directs,"…give full measure an d "full weight with equity, and
defraud not people of their things and commit not iniquity in the earth, causing
corruption." (Surah Hud. 11.85). Theft or misappropriating or converting to ones own use
property given in trust or amanat is haram and a hadd according to the Quran and Sunnah.
Allah has condemned this action and decreed an appropriate punishment for it (Surah al -
Maa'idah, 5:38). The Prophet (peace and blessings of Allah be upon him) cursed the thief
because he is a corrupt element in society, a nd if he is left un -punished, his corruption
will spread and infect the body of the ummah (Bukhari, al -Hudood, 6285). What indicates
that this ruling is definitive is that fact that a Makhzoomi noblewoman stole at the time of
the Prophet (peace and blessin gs of Allah be upon him), and, Usamah ibn Zayd wanted to
intercede for her. The Prophet (peace and blessings of Allah be upon him) became angry
and said, "Do you intercede concerning one of the hadd punishments set by Allah? Those
who came before you were destroyed because if a rich man among them stole, they would
let him off but if a lowly person stole, they would carry out the punishment on him. By
Allah, if Fatimah bint Muhammad were to steal, I would cut of her hand," (Bukhaari,
Ahadith al -Anbiya, 3216 ).
13. In the Nomination Form submitted by Mr. Rind he suppressed the fact of his two
convictions. The suppression was not something Mr.Rind could have forgotton,
overlooked or was an insignificant matter. Thus his declaration on oath, that, "I fulfil the
qualifications specified in Article 62, of the Constitution and I am not subject to any of
the disqualifications specified in Article 63 of the Constitution or any other law for the
time being in force for being elected as a member of the Senate" was clear ly false. The
question arises whether in making such a blatantly false declaration he "violates Islamic
Injunctions" to attract Article 62(1)(d) of the Constitution.
14. Almighty Allah states in the Holy Quran, "... break not the oaths after you have
confi rmed them" (Surah An -Nahal, 16:91). "And be not like her who undoes the thread
which she has spun after it has become strong, by taking your oaths a means of deception
among yourselves, lest a nation may be more numerous than another nation. Allah only
tests you by this" (Surah An -Nahal, 16:92). "And make not your oaths, a means of
deception among yourselves, lest a foot may slip after being firmly planted, and you may
have to taste the evil of having hindered (men) from the Path of Allah and yours will be a
great torment" (Sarah An -Nahal, 16:94). "... Whosoever breaks his pledge, breaks only to
his own harm and whosoever fulfils what he has covenanted with Allah, He will bestow
on him a great reward" (Surah Al -Fath, 48:10). "Allah will not punish you for wh at is
unintentional in your oaths, but he will punish you for your deliberate oaths [if false]"
(Surah Al -Maidah, 5:89). "And those who keep their trusts and covenants .... shall dwell
in Paradise" (Surah Al -Ma'arij, 70:32). "Those who are faithfully true to their trusts and
to their covenants … who shall inherit Paradise" (Surah Al -Mu'minun, 23:8), "Allah said:
'This is a Day on which the truthful will profit from their truth' "(Surah Al -Maidah,
5:119). "0 you who believe! Be afraid of Allah, and be with t hose who are true" (Surah
At-Taubah, 9:119).
15. Lies fall into two distinct categories. Those uttered to deceive and to gain an
advantage, in the present case to be able to contest elections, and innocent lies without
malice or any intended deception. In this case Mr. Rind in reply to the question in the
Nomination Form, "Have you ever been indicted in criminal proceedings or convicted for
the violation of any law (excluding minor traffic violations)?" responded by stating "No"
which was an admittedly fals e statement and made on "Declaration and Oath. Legal and
Constitutional consequences follow from making such a false declaration on oath and are
clearly not permissible in Islam and thus Mr. Rind would run foul of Article
62(1)(d) as well .
16. The Legislature in its wisdom has incorporated Article 62(1)(d) and it is therefore
the duty of the courts to interpret and apply it. We are however cognizant that the same
may be misused for ulterior motives, for instance a Muslim may not be saying his prayers
or fasting and it be alleged that he stands disqualified under Article 62(1)(d). However,
the Creator in His Infinite Wisdom and Mercy has created a distinction between those
disobediences which do not adversely affect others and those that do, and thus haqooq -ul-
Allah and haqooq ul -abad. The observances of ritual finds favour with our Lord and may
also determine whether an individual gains entry into Paradise, however, "There is no
compulsion in religion" (Surah al -Baqarah, 2:256). Even the Mes sengers of Allah were
given the task of simply conveying the message (Surah al -Imran, 3:20 and Surah al -
Mai'dah, 5:99) and it was left for the people to believe or not or abide by the prescriptions
of the Faith or not, but the people do not have the libert y to resort to crimes, including
murder, theft, misappropriation of entrusted property et cetera, which adversely affect the
rights of others. It is also reasonable to presume that the Legislature only wanted to
restrict entry of criminals (thieves, embezz lers et cetera) into the portals of Parliament
and not those who were not observing the rituals of their Faith; the probability of the
former category would not detract from them being good law makers, ministers, chief
ministers or even Prime Minister, but the nation cannot be entrusted into the hands of the
latter category. Unfortunately, Mr. Rind by his criminal conduct has himself ensured that
the doors of Parliament are closed to him.
17. In view of the abovementioned two convictions for corruption, emb ezzlement and
misappropriation of public property and for knowingly making a false declaration on oath
Mr. Rind cannot be stated to be "of good character" or someone who "is not commonly
known as one who violates Islamic Injunctions" in terms of Article 62 (1)(d). Therefore,
on this count too he does not qualify to be elected, chosen or continue as member of
Parliament of the Islamic Republic Pakistan.
18. Individuals must take responsibility for their actions. The court has been
empowered to ensure impleme ntation of the Constitution and the weight of its
responsibility if individuals are unable to do so themselves. Mr. Rind manipulated his
position for personal benefit and committed crimes. He did not stay away from public
office, as the law required, but p roceeded to file a false Nomination Form to again acquire
it. Ethically, morally and constitutionally he betrayed himself and the people of Pakistan.
Consequently this court is left with no option but to declare that Mr. Rind cannot hold the
public office of Senator under Article 62(1)(d) and (g) and Article 63(1)(h) of the
Constitution of Pakistan and the writ of quo warranto is issued against him as he has
usurped, intruded into and is unlawfully holding the public office of Senator. For the
foregoing rea sons Mr. Rind is also permanently disqualified to be elected or chosen as,
and forever being a member of Parliament and respondents Nos.2 and 3 are directed
to ensure the same.
19. In view of the fact that Mr. Rind was not qualified to seek the o ffice of Senator he is further
directed to surrender to the Government of Pakistan or the Government of Balochistan, as the case may be,
all payments and benefits received by him or expended on his behalf when he acted as Senator, including
salary, rent, t ravelling allowance and daily allowance. In case he fails to do so requisite, action by the
concerned government to be taken against him. The government will also be within its rights to prosecute
Mr. Rind for the filing of a false Nomination Form.
20. For the aforesaid reasons the petition is allowed with costs in the sum of Rupees
twenty thousand; the respondent No.l. to pay to each of the petitioners Rupees ten
thousand. He is also directed to pay the cost of the publications made to effect service
upon him to the Director General Public Relation, Government of Balochistan who bore
the costs thereof, Office is directed to send a copy of this judgment to the Government of
Pakistan, Government of Balochistan, Chairman Senate of Pakistan, respondent No.2 an d
respondent No.3.
M.H./104/Q Petition alloweThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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