Zaheer Ul Islam Abbasi Versus Umar Ayub Khan & 5 others ( PLD 2003 Peshawar 27 )

P L D 2003 Peshawar 27
 
Before Abdur Rauf Khan Lughmani and Talaat Qayum Qureshi, JJ
 
ZAHEER UL ISLAM ABBASI‑‑‑Petitioner
 
Versus
 
UMAR AYUB KHAN and 5 others‑‑‑Respondents
 
Writ Petition No. 160 of 2002, decided on 18th September, 2002.
 
(a) Representation of the People Act (LXXXV of 1976)‑‑‑
 
‑‑‑‑Ss. 99(1‑A)(h)(i)(j) [as amended by Representation of People (Amendment) Ordinance (XXXVI of 2002)]‑‑‑Pakistan Army Act (XXXIX of 1952), Ss.55 & 59‑‑‑Penal Code (XLV of 1860), S.121‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers on the ground that petitioner was a convicted person‑‑‑Election Tribunal dismissed petitioner's appeal‑‑‑Contention of petitioner was that he was not disqualified to contest election on account of his conviction under S.59 of Pakistan Army Act, 1952 read with S.121‑A of Penal Code, 1860, as same did not come within domain of "moral turpitude"‑‑‑Validity‑‑‑Petitioner while serving as senior officer in Armed Forces owed duty not only to his own Institution, but also to the then Government‑‑‑Petitioner had failed to perform his duties under law‑‑‑Charges levelled against petitioner stood proved and his conviction by Field Court Martial and confirmed by Chief of Army Staff had not been set aside by any Competent Court/Authority‑‑‑Order of dismissal of petitioner from service passed on the basis of his conviction was still in field‑‑‑Petitioner was, thus, not qualified to contest election as per S.99(1‑A)(h)(i)(j) of Representation of the People Act, 1976‑‑‑Offence of conspiracy under S.121‑A, P.P.C. could not be said in consonance with good morals by any stretch of imagination‑‑­Duty of petitioner as member of Armed Forces was to protect the country, but instead he had been convicted not only, for waging war against Pakistan, but for attempting to overthrow the then elected Government by use of force‑‑‑Such act of petitioner would certainly fall under the ambit of "moral turpitude "‑‑‑Tribunal had rightly rejected nomination papers of petitioner‑‑‑High Court dismissed Constitutional petition in limine.
 
Pakistan through Secretary, Ministry of Defence v. General Public PLD 1989 SC 6; Seth Saifullah v. Appellate Tribunal and 3 others PLD 1989.Pesh. 36; Punjab Bar Council v. Muhammad Ashiq Marth, Lahore PLI 2001 Tribunal Cases 561 and Mian Shahbaz Ahmad v. Haji Muhammad Iqbal and others 1985 SCMR 227 ref.
 
(b) Representation of the People Act (LXXXV of 1976)‑‑‑
 
‑‑‑‑Ss. 14(5), 14(5‑A) [as inserted by Representation of People (Amendment) Ordinance (XXXVI of 2002)] & 55‑‑‑Appeal by a non‑candidate against acceptance of nomination papers of petitioner suffering from disqualification of being a convicted person‑‑‑Election Tribunal accepted such appeal‑‑­Validity‑‑‑Election Tribunal had rightly assumed jurisdiction under S.14(5‑A) of the Act after coming to know about such fact through appeal. 
 
(c) Representation of the People Act (LXXXV of 1976)‑‑‑
 
‑‑‑‑Ss. 14(5), 14(5‑A) [as inserted by Representation of People (Amendment) Ordinance (XXXVI of 2002)] & 55‑‑‑Appeal against, acceptance of nomination papers of petitioner‑‑‑Issuing notice to petitioner by Election Tribunal before accepting appeal‑‑‑Requirement of‑‑‑Notice was required to he issued by Tribunal in order to inform the party that his nomination papers had been wrongly accepted and why same should not be rejected under law‑‑­Petitioner had knowledge of filing of appeal as well as about date of its fixation‑‑‑Petitioner had sent his agent to request Tribunal to adjourn such date, but same had not been acceded to‑‑‑Tribunal in such circumstances was not required to issue fresh notice to petitioner as requirement of law had been fully complied with. 
 
(d) Representation of the People Act (LXXXV of 1976)‑‑
 
‑‑‑‑S. 99(1‑A)(h)(i)(j) [as amended by Representation of People (Amendment) Ordinance (XXXVI of 2002)]‑‑‑Pakistan Army Act (XXXIX of 1952), Ss.55, 59 & 132‑B‑‑‑Penal Code (XLV of 1860), S.121‑A‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers on the ground that petitioner was a convicted person‑‑­Election Tribunal dismissed appeal‑‑‑Contention of petitioner was that his conviction under S.59 of Pakistan Army Act, 1952 read with S.121‑A of Penal Code, 1860 was not final, as no‑ appellate forum had been provided to avail right of appeal‑‑‑Validity‑‑‑Conviction and sentence of petitioner had been recorded by competent Court provided under Pakistan Army Act, 1952 and confirmed by Chief of Army Staff‑‑‑Forum provided for appeal as per S.132‑B of Pakistan Army Act, 1952 was not proper forum for petitioner‑‑­Petitioner had not agitated against his conviction before any Court/forum, but had agitated such point for the first time through present Constitutional petition after lapse of six years‑‑‑Petitioner had not placed on record a single representation allegedly made by him to Prime Minister etc.‑‑‑High Court dismissed Constitutional petition being hit by principle of laches. 
 
PLD 2000 SC 869 ref.
 
(e) Administration of justice‑‑‑
 
‑‑‑‑ Courts always help the vigilant, who approaches Court in time, but do not help the person, who is negligent in pursuing his matter.
 
PLD 2000 SC 869 fol.
 
(f) Representation of the People Act (LXXXV of 1976)‑‑‑
 
‑‑‑‑Ss. 99(1‑A)(h)(i)(j) [as amended by Representation of People (Amendment) Ordinance (X XVI of 2002)]‑‑‑Pakistan Army Act (XXXIX of 1952), Ss. 55, 59 & 132‑B‑‑‑Penal Code (XLV of 1860), S.121‑A—­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers on the ground that petitioner was a convicted person‑‑­Election Tribunal dismissed petitioner's appeal‑‑‑Contention of petitioner was that charge against him had not been proved, thus, his conviction under S.59 of Pakistan Army Act, 1952 read with S.121‑A of Penal Code, 1860, was not proper‑‑‑Validity‑‑‑High Court in exercise of Constitutional jurisdiction could not go into propriety, legality, correctness or finality of order of conviction recorded by Court of competent jurisdiction‑‑‑Even otherwise such exercise would amount to going deep to see as to whether conviction order passed by Field Court Martial was proper or not‑‑‑High Court could not perform the functions of an Appellate Court‑‑‑Petitioner while serving as Major General in Pakistan Army had been convicted by Field General Court Martial‑‑‑High Court by virtue of Art.199(3) of the Constitution had no power to pass any order regarding finality or propriety of such conviction‑‑‑High Court dismissed Constitutional petition. 
 
(g) Words and phrases‑‑
 
‑‑‑"Moral turpitude" ‑‑‑Meaning. 
 
Black's Law Dictionary, 6th Edn.; Webster’s Dictionary; Words and Phrases Legally Defined, Vol. III, 2nd Edn., p.294; Remnatha Aiyer's Law Lexicon; Law Laxicon of British India by P. Ramantha Lyer, 1940 End., p.832; Bartos v. United‑States District Court for District of Nebraska, C.C.A. Neb. 19 F.2d 722; Corpus Juris Secundum, Vol. 1, VIIIth Edn., p.1200; Baleshwar. Singh v. District Magistrate AIR 1959 All. 71; Sita Ram v. District Magistrate, Piliobit, 1957 ALJ 383; Managali v. Chhakki Lal AIR 1963 All. 527; In re: P. Advocate (1963) 2 SGJ 708 and AIR 1963 SCJ 1313 ref.
 
(h) Words and phrases‑‑‑
 
‑‑‑‑‑"Discrimination"‑‑‑Connotation‑‑‑Discrimination occurs only when two or more persons, who are similarly placed, in similar situation and in similar ambient circumstances, are treated differently.
 
Mushtaq Ali Tahirkheli for Petitioner.
 
Date of hearing: 18th September, 2002.
 
 
JUDGMENT
 
TALAAT QAYUM QURESHI, J.‑‑‑Zaheer‑ul‑Islam Abbassi, petitioner filed his nomination papers for contesting election from N.A. 17 and N.A. 19, Haripur for the National Assembly. For the nomination papers tiled for N.A. 17, Abbottabad the contesting candidates or any other person did not raise any objection before the Returning Officer. Resultantly, the nomination papers filed by the petitioner were accepted but his nomination papers filed for N.A. 19 were objected to by one of the contesting candidates on the ground that petitioner being convicted person was not eligible to contest election. His nomination papers were rejected by the Returning Officer N.A.19 Haripur vide order dated 27‑8‑2002. Petitioner filed appeal against rejection of his nomination papers for N.A. 19 before the Election Tribunal, N.‑W.F.P. which was ultimately dismissed vide judgment/order dated 7‑9‑2002. It is worth‑mentioning that one Bashir Hussain, respondent No.3 filed an appeal before the Election Tribunal, N.‑W.F.P. Peshawar against the acceptance of the nomination papers of the petitioner by the Returning Officer, Abbottabad vide order dated 27‑8‑2002 and prayed for rejection of the nomination papers of the petitioner. The said appeal was allowed by the learned Election Tribunal vide judgment/order dated 9‑9‑2002. The petitioner through writ petition in hand has called in question the orders dated 7‑9‑2002 and 9‑9‑2002 passed by Election Tribunal, N.‑W. F. P.
 
2. Mr. Mushtaq Ali Tahir Kheli, Advocate, learned counsel representing the petitioner argued that neither while rejecting the appeal filed by the petitioner nor at the time of acceptance of appeal filed by respondent No.3, the learned Tribunal adjudicated upon the points raised before it. It was further argued that before accepting the appeal filed by respondent No.3, it was incumbent upon the tribunal to have issued show‑cause notice to the petitioner enabling him to argue his case before the Tribunal which was not done. This act of the Tribunal is against the mandatory provisions of law. Moreover, the Tribunal had no jurisdiction to entertain the appeal filed by respondent No. 3.
 
3. It was further argued that the conviction of the appellant recorded by the Field General Court Martial would not come into his way because the conviction order has not become final due to non‑availability of the appellate forum. Elaborating his argument, the learned counsel stated that after the declaration by the Supreme Court of Pakistan in Pakistan through Secretary, Ministry of Defence v. General Public PLD 1989 SC 6 that the provisions of section 133 of Pakistan Army Act, 1952 were repugnant to the Injunctions of Islam, section 133‑B, was incorporated in the said Act vide Act 27 of 1992 dated 24‑12‑1992 but the newly incorporated section of law did not provide proper remedy to the petitioner to avail the right of appeal. Since no forum of appeal was provided, therefore, the sentence/conviction passed by the Field General Court Martial was not final and binding upon the petitioner.
 
4. It was also argued that the conviction of the petitioner under section 59 of Pakistan Army Act 1952 read with section 121‑A of Pakistan Penal Code would not come within the domain of "moral turpitude", therefore, the petitioner was not disqualified to take part in the election. Reliance in this regard was placed on Seth Saifullah v. Appellate Tribunal and 3 others PLD 1989 Pesh. 36, Punjab Bar Council v. Muhammad Ashiq Marth, Lahore PLJ 2001 Tribunal Cases 561, Mian Shahbaz Ahmad v. Haji Muhammad Iqbal and others 1985 SCMR 227.
 
5. It was further argued that the petitioner has been discriminated and has not been dealt with in accordance with law in that the petitioner was convicted for conspiring to wage war against Pakistan and for misconduct. Though the charge of misconduct was not proved against him but still he was convicted under section 59 of Pakistan Army Act and section 121‑A of Pakistan Penal Code whereas the action of the Chief of Army Staff over­throwing the elected Government was validated by the august Supreme Court of Pakistan vide judgment PLD 2000 SC 869. Moreover, one Major Raja Major Nadir Parvez had also been convicted by Field General Court Martial but he was allowed to contest election for National Assembly vide judgment 1987 SCMR 1107. It was prayed that the petitioner be also dealt with similarly and his conviction which is still not finalized should not be considered an impediment in his way to contest the forthcoming election from both the constituencies for which he has filed his nomination papers.
 
6. The argument of the learned counsel for the petitioner that the learned Election Tribunal N.‑W.F.P. (hereinafter referred to Tribunal) did not dilate upon all the arguments embodied in memo of the appeal while deciding Appeal No.17/2002 (decided on 7‑9‑2002) has no force at all. The only question before the learned Tribunal was as to whether the petitioner was qualified to contest election and whether his nomination papers were properly rejected/accepted by the Returning Officers has been properly answered by the Tribunal. There is no denial of the fact that the petitioner was convicted by the Field General Court Martial vide its order dated 20‑9‑1996 (Annexure A) and confirmed by the then Chief of Army Staff vide his order dated 28‑10‑1996 (Annexure B). The conviction order has not been set aside till date by any competent Court/authority. There is no cavil with the proposition that the petitioner was dismissed from the service on the basis of the said conviction order. His dismissal order from service is also still in field. The learned Tribunal keeping in view the provisions of section 99(1‑A)(h)(i)(j) of the Representation of the People Act, 1976 rightly rejected the appeal filed by the petitioner.
 
7. So far as appeal filed by respondent No.3 against petitioner is concerned, no doubt subsection (5) of section 14 of People Representation Act, 1976 provides that appeal can be preferred against the decision of the Returning Officer by a candidate only but the amendment brought vide Ordinance XXXVI of 2002 dated 31‑7‑2002 whereby subsection (5‑A) has been inserted in section 14 of People Representation Act, 1976, stipulates that the Tribunal could proceed even on the basis of any information. or material brought to its knowledge by any source and if the Tribunal is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes, Government dues or utility charges or has had any loan written off or suffers from any disqualification from being elected as a Member of an Assembly, the Tribunal could on its own motion call upon such candidate to show cause as to why his nomination papers may not be rejected and on satisfaction of the Tribunal that a candidate suffers from any disqualification could reject his nomination papers. Through appeal filed by respondent No.3, it had been brought to the knowledge/notice of the learned Tribunal that petitioner suffers from disqualifications being a convicted person and that his nomination papers should have been rejected by the Returning Officer, the Tribunal assumed the jurisdiction under subsection (5‑A). So far as the issuance of show‑cause notice to the petitioner is concerned, the learned counsel daring arguments admitted ‑at bar that some one had appeared on 9‑9‑2002 before the learned Tribunal and requested the learned Tribunal to adjourn the date which request was not acceded to. It is a matter of common knowledge that a notice is required to be issued by the Tribunal in order to inform the party that his nomination papers have been wrongly accepted and why the same should not be rejected under the law. In the case in hand the petitioner had the knowledge of tiling of appeal by respondent No.3 against him. He also had the knowledge of the fixation of the said appeal for 9‑9‑2002 and he had sent his agent to request the Tribunal to adjourn the date. Therefore, there was no further need for the Tribunal to issue any fresh notice to the petitioner. The requirements of law have been fully complied with. We do not feel persuaded to interfere into the impugned orders on this score.
 
8. So far as the arguments of the learned counsel for the petitioner that the conviction of the petitioner recorded by the Field General Court Martial is not final as no appellate forum has been provided to the petitioner for availing the right of appeal is concerned this argument has no substance firstly, because his conviction was recorded by the competent Court provided under Pakistan Army Act, 1952 vide order dated 20‑9‑1996 which was confirmed by the Chief of Army Staff on 28‑10‑1996. The petitioner did not agitate before any Court/forum that despite incorporation of section 153‑B in Pakistan Army Act, 1952, he has not been provided with the appellate forum because his conviction/sentence was confirmed by the Chief of Army Staff and the forum provided for appeal as per section 153‑B was not proper forum for the petitioner. He has agitated this point for the first time through writ petition in hand after lapse of‑ about 6 years. Although the learned counsel for the petitioner in order to explain the delay in agitating the said point stated at the bar that the petitioner had made representations to the then I Prime Minister, worthy President, Chief of Army Staff‑and Hon'ble Chief Justice of Pakistan which are still un‑responded by not a single representation made by the petitioner has been placed on the file. The writ petition tiled by the petitioner on this ground is hit by the principles of laches because Courts always help the vigilant who approaches the Court in time but do not help the person who is negligent in pursuing his matter. Wisdom in this regard has been sought from, a judgment of august Supreme Court of Pakistan Mst. Tahira Almas and another v. Islamic Republic of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2002 page 830.
 
9. Secondly, this Court while exercising its Constitution jurisdiction cannot go into propriety legality or correctness or finality of the order of conviction recorded by the Court of competent jurisdiction. Dilating upon the argument of the learned counsel would amount to go deep to see as to whether the conviction order passed by Field General Court Martial is proper or not. This Court cannot perform the functions of an Appellate Court as the learned counsel for the, petitioner wanted us to do.
 
10. Thirdly, sub‑Article (3) of Article 199 imposes an embargo upon the jurisdiction of this Court to issue writ in. respect of any matter or any action taken in relation of a person as a member of the Armed Forces of Pakistan or as a person subject to such law. Petitioner who was serving as Major General in Pakistan Army was convicted by the Field General Court Martial, therefore, this Court while sitting in Constitutional jurisdiction has no power to pass any order regarding the finality or propriety of the conviction order.
 
11. The argument of the learned counsel for the petitioner that the conviction of the. petitioner under section 59 of Pakistan Army Act, 1952 read with section 121‑A of Pakistan Penal Code, would not come within the domain of "moral turpitude" and, therefore, he was not disqualified to take part in election has no force. The main question which needs determination in this writ petition is as to whether the offence for which the petitioner was convicted and sentenced by Field General Court Martial involved "moral turpitude" or not. The answer to this question is in positive. The expression °' moral turpitude" as per Black's Law Dictionary, Sixth Edition means:‑‑
 
            "The act of baseness, vileness, or the depravity in private and social duties which   man owes to his fellow man, or to society in general, contrary to accepted and             customary rule of right and duty between h man and man. Act or behaviour that       gravely violates moral sentiment or accepted moral standards of co mmu4ity and             is a morally culpable quality held to be present in some criminal offences as             distinguished from others. The quality of a crime involving grave infringement of             the moral sentiment of the community as distinguished from statutory mala             prohibita. "
 
12. Likewise according to Webster Dictionary meaning it is "an act or behaviour that gravely violates moral sentiment or accepted moral standards of community". In book "Words and Phrases Legally Defined", Vol. III, 2nd Edn. at page 294, by Saunders, it has been observed under heading, "Moral turpitude" by Court in Canada, "find very little meriting applicant's claim that admitted offences of issuing false cheques and being operator of worthless cheques are not crimes of moral turpitude. These acts of baseness in duties which a man owes to his fellowmen……. I agree entirely with American decisions that words "moral" preceding word "turpitude" adds nothing to it, it is pleonasm which has been used only for sake of emphasis.
 
13. In Remnatha Aiyer's Law Lexicon phrase "moral turpitude" is defined as follows:‑‑
 
            "Anything done contrary to justice, honesty, principle, or good morals; an act of            baseness, vileneess of depravity in private and social duties which a man owes to             his fellowmen, or to society in general, contrary to accepted and customary rule of         right and duty between man and man. " 
 
            "MORAL TURPITUDE‑‑The act of baseness, vileness, or depravity in private and social duties which man owes to his fellow man, or to society in general,             contrary to accepted and customary rule of right and duty between man and man.             State v. Adkins, 40 Ohio App. 2d 473, 320 N.E. 2d 308,3211, 69 O.O. 2d             416‑‑Excellent Legal Words and Phrases by Mian Muhibullah Kakakhel, Vol. II,         1996, page 3366‑3367. "
 
14. The words "moral turpitude"' in Law Lexicon of British India by P. Ramantha Lyer, 1940 Edn., at page 832 has been defined anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in private and social duties which a man owes to his fellow man or to society in general contrary to accepted and customary rule of right and duty between man and man‑‑further what constitutes moral turpitude or what will be held such, is not entirely clear‑‑‑A contract to promote public wrong, short of crime may or may not involve it. If parties intend such wrong, as where they conspire against public interests by agreeing to violative law or some rule of public policy, act of doubtless involves moral turpitude.
 
15. MORAL TURPITUDE‑‑A term of frequent occurrence in statutes, especially those providing that a witness, conviction of a crime involving moral turpitude may be shown as tending to impeach his credibility‑‑In general, it means neither more nor less than "turpitude", i.e. anything done contrary to justice, honesty, modesty, or good morals‑‑‑It is also commonly defined as an act of baseness, vileness, or depravity in private and social duties which a man owes to his fellow man or to society in general, contrary to accepted and customary rule of right and duty between man and man. Although a vague term, it implies something immoral in itself regardless of its punishable by law. Thus excluding unintentional wrong, or an improper act done without unlawful or improper intent‑‑‑It is also said to be restricted to gravest offences, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind‑‑Bartos v. United States District Court for District of Nebraska, C.C.A. Neb 19 F. 2d 722, 724‑­rurpitude, Lat. Baseness; infamy immorality turpitude.
 
At page 1200 of book "Corpus Juris Secundum", Vol. 1, VIIIth Edn. it is stated, "moral turpitude" is not a new term but rather, it is a term which is old in law, and which has been used in law for centuries. It is a term which has been subject of any decision and which has been much defined by Courts, but its definition does not gain in clarity by prolixity of statement‑‑‑It is further stated that as a legal term "moral turpitude" is defined as quality of a crime involving grace infringement of moral sentiment of community as distinguished from statutory mala prohibita‑‑The concept of moral turpitude depends to some extent on the state of public morals and is to be determined by state of public moral and common sense of community and since moral turpitude is a term which conforms to and is consonant with state of public morals, it never can remain stationary but it may vary according to community or times‑‑‑Further it has been stated that moral turpitude "involves question of intent", as a general rule, unintentional wrong, or an improper act done without unlawful or improper intent does not carry with it germ of moral turpitude‑‑Moral turpitude implies something immoral in itself regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not a crime‑‑It must not merely be mala prohibita but act itself must be inherently immoral involves an act of inherent baseness in private, social or public duties which one owes to his fellowman or to his society, to his country, his institutions and his Government and refers to conduct which is inherently base, vile or depraved and contrary to accepted rule of morality.
 
16. Similarly, in Baleshwar Singh v. District Magistrate (AIR 1959 All. 71) learned Judge was dealing with case of conviction under section 182, I.P.C. for making a false report and in holding that conviction on such an offence involved moral turpitude. He relied on an earlier decision of Allahabad High Court reported as Sita Ram v. District Magistrate, Pilibhit, 1957 ALJ 383 where he held that every false statement made by a person may not be "moral turpitude", it was observed that it would so if it discloses vileness or depravity in doing of any private and social duty which a person owes to his fellowmen or to his society in general‑‑These observations were considered by another learned Judge of Allahabad High Court A.P. Srivastava, J., in Mangali v. Chhakki Lal AIR 1963 All. 527 A.P. Srivastava, J. was of opinion that some of observations made by J.K. Tandon, J., had been too widely stated and, followed literally may make every act punishable in law and‑offence involving moral turpitude, of course, could not have been intention of Legislature, otherwise qualifications "involving moral turpitude", would not have been used by Legislature and it would have merely disqualified every person who had been convicted of any offence‑‑‑In view of A.P. Srivastava, J., tests, which should ordinarily be applied for Judging whether a certain offence did or did not involve moral turpitude are as follows:‑‑
 
            "(1) Whether act leading to conviction was such as could shock moral conscience            of society in general?
 
            (2) Whether motive which led to act was a base one? and
 
            (3) Whether on account of act having been committed perpetrator could be            considered to be of a depraved character or a person who was to be looked down             upon by society"‑‑Risal Singh v. Chandgi Ram. AIR 1966 Punj.) 393 at             pp.393‑4.
 
It is of utmost importance to remember that expression "moral turpitude or delinquency" is not to receive a narrow construction‑‑‑Whether conduct proved against an advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude‑‑‑A wilful and callous disregard, for interests of client may, in a proper case, be characterized as conduct unbefitting an advocate‑‑In re: P. Advocate, (1963) 2 SGJ 708 at p.711, AIR 1963 SO 1313 (p.581) Q:
 
            "TURPITUDE‑‑In its ordinary sense, inherent baseness or vileness of principle            or action; shameful wickedness: depravity‑‑In its legal sense, every thing done             contrary to justice, honesty‑modesty or good morals‑‑‑An action showing gross             depravity ‑‑‑ Traders and General Ins. Co. v. Russell, Tex. Civ. App., 99 S.W.2d,             1079, 1084."
 
            MORAL TURPITUDE‑‑The term "moral turpitude" being a vague expression, it            may have different meanings in different context‑‑­The term has generally been            taken to mean to be a conduct contrary to justice, honesty, modesty, or good    morals and contrary to what a man owes to a fellow man or to society in             general‑‑‑It has never been held that gravity of punishment is to be considered in             determining whether misconduct involves moral turpitude or not‑­Even if words             "involving moral turpitude" are held to be implied in "conviction on a criminal             charge" in proviso to Article 31(2) it is clear that if a member of police force is             guilty of having been found drunk at a public place or to have become habituated             to liquor and if he is convicted by a criminal Court, then his conviction should be             held as involving moral turpitude‑‑Durga Singh v. State of Punjab AIR 1957   Punjab 97 at page 98‑‑
 
            Law Lexicon with Legal Maxims revised by Hon'able Justice, M. C. Desai            Ex‑Chief Justice, Allahabad High Court, published by Law Publishers (India) Private Ltd.‑‑Allahabad.
 
17. The examination of the above mentioned definitions and meaning of expression "moral turpitude" lead us to a conclusion that the action of a person would fall under the ambit of "moral turpitude" if his action injures, his moral fibre, lowers him down in moral values, it involves an act of inherent baseness in private, social or public duties which one owes to his fellow man, to his society, to his country, his institutions and his Government. In the case in hand petitioner owed duty not only to his own institution where he was at relevant time serving as a senior officer but he also owed duty to the then Government. He was under oath for allegiance to the Government of Pakistan and to perform his duties under the law which he failed to perform under the then existing laws governing his service etc. He was charged to have conspired with his co‑accused to wage war against Pakistan so as to overthrow the Federal Government of Pakistan by means of criminal force. Knowingly the existence of conspiracy he did not report the matter to his higher authorities. The charges levelled against him stood proved and he was convicted and sentenced to suffer rigorous imprisonment for 7 years and was also dismissed from service. We have no reasons to differ with the findings/observations of the learned Tribunal that the offence of conspiracy punishable under section 121‑A, P.P.C. cannot be said to be in consonance with good morals by any stretch of imagination and that as a member of Armed Forces he was to protect the country but instead he was convicted for waging war against Pakistan. The act of the petitioner certainly would fall under the ambit of "moral turpitude", hence his nomination papers for both the constituencies were rightly rejected by the learned Tribunal.
 
18. Moreover, the petitioner was dismissed from service and as mentioned above his dismissal has not been set aside by any competent Court/Authority and as per provisions of section 99(1‑A)(h)(i)(j), he was not qualified to contest elections. The impugned judgments/orders of the learned Election Tribunal are in accordance with law, hence need no interference.
 
19. So far as the argument of the learned counsel for the petitioner that the petitioner has been discriminated and has not been treated in accordance with law, because the present President of Pakistan's action of overthrowing the elected Government had been validated by the august Supreme Court of Pakistan whereas the petitioner who was charged for attempting to remove the elected Government in order to bring Islam was punished. This argument of the learned counsel, we are afraid, is also of no substance.
 
20. It is by now settled law that discrimination occurs only when two or snore persons who are similarly placed, in similar situation and in similar ambient circumstances are treated differently. The case of the petitioner as presented before us is not identical to that of the case of present Chief of the Army Staff. The mere fact that the actions of the present Chief of Army Staff have been validated by the august Supreme Court of Pakistan, would justify the validation of the acts of the petitioner is not sufficient to establish the factum of discrimination unless the circumstances of both the cases are proved to be the same. Nothing could be brought forth in this case to convince us that facts; situation and circumstances in both the cases mentioned above were alike. The petitioner was in active service and was serving as Major‑General at the relevant time. He was charged under sections 55 and 59 of the Pakistan Army Act read with section 121‑A of Pakistan Penal Code for not only waging war against Pakistan but for attempting to overthrow the then elected Government by use of force. The said charge was proved against him for which the competent Court constituted under Pakistan Army Act, 1952 had convicted him. The said conviction was also confirmed by the then Chief of Army Staff. So far as the case of the present Chief of Army Staff is concerned the august Supreme Court of Pakistan for detailed reasons given in the judgment has validated his actions and we are bound to follow the same.
 
21. So far as the case of Major Raja Nadir Parvez is concerned the law which was in existence at the relevant time did not disqualify him from taking part in the elections, the august Supreme Court of Pakistan keeping in view the prevalent law vide, judgment reported in 1987 SCMR 1107 passed verdict in his favour. Clause (h) in subsection (1)(a) of section 99 of the People Representation Act, 1976 have been substituted vide Ordinance No. XXVI of 2002 dated 31‑7‑2002 according to which if a person 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, is disqualified for being elected as and from being a member of an Assembly. Similarly, as per clause (1) of subsection (1‑A) of section 99 of ibid Act if a person has been dismissed from service of Pakistan or service of a Corporation or Office set up or controlled by Federal Government, Provincial Government or a Local Government on ground of misconduct or moral turpitude he is also disqualified from being elected as and from being a member of an Assembly. The case of the petitioner falls under clauses (h)(i) and (j) of subsection (1‑A) of section 99 of the People Representation Act, 1976. His case is, therefore, distinguishable than that of Raja Nadir Parvez case. We, therefore, observe that no discrimination has been meted out to the petitioner.
 
22. The above discussion leads us to an irresistible conclusion that the writ petition iii hand has no force, hence the same is dismissed in limine alongwith Criminal Miscellaneous.
 
S.A.K./615/P                                                                            Petition dismissed.
 
 
 

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