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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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(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

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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

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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

22/9/2014.