4/13/24, 12:14 AM 1997 S C M R 117

1997 S C M R 117

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, C.J., Fazal Ilahi Khan and

Raja Afrasiab Khan, JJ

Mehar ZULIFQAR ALI BABU and 3 others‑‑‑Appellants

versus

GOVERNMENT OF PUNJAB through Secretary, Local Government

and Rural Development, Lahore and others‑‑‑Respondents

Civil Appeals Nos. 1254, 1255, 1256 of 1996; C.M.A. 347/96 out of Civil Petitions
245‑L, 471‑L and 585‑L of 1995, decided on 26th June, 1996.

(a) Punjab Local Government Ordinance (VI of 1979)

‑‑‑‑S.26‑A‑‑‑Constitution of Pakistan (1973), Art 185‑‑‑Notification issued on 15th

August, 1993 with direction that fresh election of Local Bodies would be conducted in
January, 1994‑‑‑Validity of such notification was called in question before High
Court‑‑‑Single Bench of High Court directed that process of election must be
completed by 31st March, 1994, otherwise Local Councils would stand revived with
effect from‑1‑4‑1994 ‑‑‑Later on earlier notification was superseded and another
notification was issued whereby election to Local Councils were ordered to be
conducted on 27‑7‑1994 and tenure of Local Bodies was curtailed‑‑‑Division Bench of
High Court which was seized of the matter against judgment of Single Bench of High
Court declared proceedings before it to have become infructuous and dismissed the
same ‑‑‑Supreme Court, however, directed High Court to decide such matter on merits
after obtaining amended memo of appeal‑‑‑Division Bench of High Court maintained
judgment of Single Bench with modification that in case process of fresh election was
not commenced and taken to logical conclusion all Local Bodies would stand
automatically revived‑‑ Validity‑‑‑Conditional judgment of Division Bench of High
Court was not sustainable‑‑‑Judgment of Single Bench was to the effect that if by
particular date elections were not conducted, Local Bodies would stand revived‑‑‑Such
view was maintained by Division Bench‑‑‑Government having not assailed validity of
impugned judgment seemed to have been satisfied with the judgment of Division
Bench‑‑‑Notification dated 15th August, 1993 directed that elections were to be
conducted in January 1994, which were not conducted for no plausible reasons‑‑‑No

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schedule in that behalf was given by Competent Authority‑‑‑Target period ended

without holding elections‑‑‑Local Bodies, thus, stood automatically revived without
attaching any condition after specified period.

East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854 and Haji Ghulam Zamin and
another v. A.B. Khondkar and others PLD 1965 Dacca 156 ref.

(b) Punjab Local Government Ordinance (VI of 1979)

‑‑‑‑S.26‑A‑‑‑Power under S.26‑A, Punjab Local Government Ordinance 1979 could

only be used for limited period to achieve specific objective of holding fair elections.

Black's law Dictionary and Dictionary by Macmillan‑‑‑William D Halsey ref.

Punjab Local Government Ordinance (VI of 1979)

‑‑‑‑S. 159‑‑‑Government power to suspend Local Council or Councils‑‑ Government in

taking such action must have reason to believe that particular council had failed to
discharge its function or administer its financial obligations or was proceeding against
public interest or was abusing its powers in discharge of its functions‑‑‑Suspension
would be for two months in which enquriy has to be conducted against delinquent
council‑‑‑In absence of requisite inquiry suspended council would stand
revived‑‑‑Government did not have power to pack up whole Government system.

(d) Punjab Local Government Ordinance (VI of 1979)

‑‑‑‑S. 159‑‑‑Audi alteram partem, principle of‑‑‑Local Councils were dissolved by

Government without providing them opportunity of hearing‑‑‑Right of hearing had
been given to affected council under S. 159 of the Ordinance‑‑ Issuance of impugned
notification curtailing tenure of Local Council could be struck down on sole ground
that they were not heard before proceeding against them in regular manner‑‑‑Issuance
of notification to dissolve local bodies was based on bad faith to defeat spirit of
law‑‑‑Action of Government, thus, was coram non judice on the face of
it‑‑‑Notification dated 15th August, 1993 was without jurisdiction and was set
aside‑‑‑Appellants were entitled to be reinstated in their offices so as to enable them to
complete their remaining term.

(e) Punjab Local Government Ordinance (VI of 1979)

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‑‑‑‑Ss. 26‑A & 159‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Allegation of

large‑scale corruption against Local Councils‑‑‑No positive proof or document in
support of such allegation was produced in Court‑ ‑In absence of, positive proof no
action could be taken on mere allegation‑‑‑Unless and until it was proved that
appellants had misappropriated public funds, they could not be declared disqualified to
hold public offices on which they were inducted by people.

(f) Words and phrases‑‑‑

‑‑‑ Word "curtail" ‑‑‑Meaning.

(g) Words and phrases‑‑‑

‑‑‑‑Word "abolish "‑‑‑Meaning.

Black's Law Dictionary and Dictionary by MaCmillan‑‑‑Willam D. Halse ref.

Iftikhar Hussain Gilani and Maqbool Elahi Malik, Advocates Supreme Court with
Syed Abul Aasim Jaffri and Ch. Mehdi Khan Mehtab, Advocates‑on Record for
Appellants (in C. As. Nos. 1254 and 1255 of 1996).

Aitzaz Ahsan, Advocate Supreme Court with Mehmood A. Qureshi,

Advocate‑on‑Record for Appellant (in C.A. No. 1256 of 1996).

Ch. Muhammad Farooq, Advocate Supreme Court with Ch. Akhtar Ali,
Advocate‑on‑Record for Applicant (in C.M.A. 347 of 1996 in C.A. No. 1254 of 1996).

Abdul Sattar Najam, Advocate‑General, Punjab for Respondents.

Date of hearing: 26th June, 1996.

JUDGMENT

RAJA AFRASIAB KHAN, J.‑‑‑On 28th December, 1991, elections to the Punjab
Local Bodies were held under the Punjab Local Government Ordinance, 1979
(hereinafter called the Ordinance). The members of the elected local bodies were given
oath and, accordingly, they took charge of their offices on 9‑2‑1992. Their tenure
commenced from this date onward which would come to an end on 9th of February,
1997 under section 26 of the Ordinance. On 15th of August, 1993, the Governor of
Punjab issued Notification No. SOV (LG) 3‑32/93 under section 26‑A of the Ordinance

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with direction that fresh elections would be held in the month of January 1994. The
said notification reads as follows:‑‑

"In exercise of the power conferred on him under section 26‑A of the Punjab Local
Government Ordinance, 1979, the Governor of the Punjab is pleased to direct that
fresh elections to the Local Councils in the Punjab will be held in the month of
January, 1994 and as a consequence thereof the term of office of the said Councils
stands curtailed with immediate effect.

The Governor is further pleased to appoint the persons and authorities shown in
column No. 3 of the Schedule given below as Administrators of the Local Councils
mentioned against them in column 2 thereof."

Mehar Zulfiqar Ali Babu etc. instituted Constitution Petition No. 9009 of 1993 to call
in question the legality of the aforesaid notification. On 30th of January, 1994, a
learned Judge .of the Lahore High Court decided the writ petition alongwith other
identical matters in the following manner:‑‑

"The Government is, therefore, well advised to hold elections to the local councils till
31‑3‑1994. The date has been fixed keeping in view the time required for making
necessary arrangements for holding the elections, the Holy month of Ramazan and the
harvesting season.

This is all the more necessary to create uniformity. There are 29 Zila Councils, one
Metropolitan Corporation, 7 Municipal Corporations, 63 Municipal Committees, 135
Town Committees and 2392 Union Councils with thousands of Councilors and
innumerable office‑bearers in the Province. Only a small fraction i.e. 12 Zila Councils,
the Metropolitan Corporation, one Municipal Corporation and one Municipal
Committee are before the Court. The High Court can grant relief under Article 199 of
the Constitution to an "aggrieved party" and not to those who seem to have foregone
their rights, if any.

However, it is made very clear, that if the election process is not completed by 31st of
March, 1994, it would mean that the Government is not interested in the general public
good, the will of the political sovereign ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ electorate in the Province is
not being honoured, and the provisions of the Ordinance are being violated, breached
and by passed. All this would be hit by Article 4 of the Constitution (to be treated in
accordance with law is the inalienable right of every citizen). In that eventuality the
law must have its course and the writ petitioner Local Councils shall, stand revived
w.e.f. 1‑4‑1994. "

W.P. No. 9194 of 1993 was dismissed due to the death of the petitioner, Mian Abdul
Majid. Civil Miscellaneous Application No.1858/93 of Muhammad Latif Rana and
another application filed by Muhammad Iqbal Khokhar, Advocate in W.P. No. 9009 of
1993 for their impleadment as patty were dismissed because the learned counsel did

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not argue their cases. Intra‑Court Appeals Nos.81, 92, 93, 96, 97, 102 and 123 to 132
of 1994 were instituted to assail the impugned judgment. Writ Petition No. 2311 of
1994 challenging the notification dated 15th of August, 1993 was also brought before
the Court. On 5‑4‑1994, the Governor of the Punjab promulgated the Punjab Local
Government (Amendment and Validation) Ordinance, 1994 whereby an explanation
was added to section 26‑A which is as follows:‑‑

"Explanation.‑‑For the removal of doubts it is hereby declared that the Government

has and shall be deemed always to have had the power to curtail the term of the Local
Councils regardless of the duration of the residual term of the said Local Councils".

Section 3 is a validation clause, which is in the following terms:‑

"Validation. ‑‑Notwithstanding anything contained in section 26‑A of the Punjab

Local Government Ordinance, 1979 (VI of 1979), before its amendment by this
Ordinance, or any judgment or order of any Court or other authority or any proceeding
pending before any Court or other authority, any Notification under the aforesaid
section 26‑A, issued before the commencement of this Ordinance, shall be valid and
shall be deemed always to have been validly issued."

The result was that the earlier notification was superseded by issuing another
notification on 5‑4‑1994 where under elections to the local councils were ordered to be
held on 27‑7‑1994. The tenure of Local Bodies was curtailed with immediate effect.
This being the position, the aforesaid matters were declared to have become
infructuous and as such were dismissed by the Division Bench on 9‑4‑1994. The
appellants challenged this order through petition for leave to appeal. This Court after
hearing the learned counsel for the parties, converted petition into appeal and allowed
the same by remanding the case to the High Court with direction to decide it on merits
after obtaining the amended memo of appeal. On remand, the Division Bench of the
Lahore High Court vide its judgment dated 19th of February 1995 upheld the judgment
of learned Single Judge with modification observing:‑‑

"The learned Single Judge did not feel persuaded to exercise discretion in favour of
reviving the dissolved Local Councils in the facts and circumstances of this case. The
view which prevailed for declining to exercise discretion was that there was allegations
of large‑scale embezzlement in Local Councils Fund and that the members had openly
announced their affiliation with a particular political party in the writ petition which
was violative of the law and the rules. This view was taken considering that the
elections of members of the Local Bodies under the law were required to be held on
non‑party basis with a view to keep the Local Bodies free from the influence of the
political parties. It was found to be not a fit case on account of this conduct of the
members of the Local Bodies for exercising discretion in favour of their revival.

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The question of revival or otherwise of the Local Councils engaged on serious

consideration and we heard learned counsel for the parties at length. The impugned
decision to dissolve the Local Councils was taken by the then care‑taker Provincial
Government installed as a result of consensus at the national level between the two
rival political forces for a limited purposes of holding free, fair and transparent general
elections in the country. The said Government cannot be said to have any political
motive to benefit itself while taking such a decision. Though in the normal
circumstances as argued by Mr. S.M. Zafar, Advocate, there may be no nexus between
the general elections in the country and the Local Councils but in the peculiar
circumstances of this case if the care‑taker Government in order to achieve the object
of holding fair and free general elections took such a decision the same was not wholly
without substance, as `such, it did not suffer from mala‑fide as was urged in the
Constitutional petition. The idea behind the dissolution of the Local Councils appears
to be that there should be no possibility of raising any plea that the members of the
Local Council who had been declaring their affiliation with a particular political party
had used the Local Councils Funds for any party in the General Elections. For this
additional reason also, we are not inclined to disagree with the learned Single Judge on
the question of declining the exercise of discretion against the restoration of the Local
Councils.

We, however, do not find ourselves in agreement with the learned Single Judge that in
case the elections were not held as directed by him only those Local Councils should
be restored which had filed the writ petitions and not the others. The
notification/impugned order was one single transaction as such there is no reason not
to revive all the Local Councils in case the Government fails to hold elections as
ordered.

For the foregoing reasons, the impugned judgment of the learned Single Judge is
upheld with the modification that in case within three months from today the process
for holding fresh elections of the Local Bodies is not commenced and taken to its
logical conclusion, all the Local Bodies shall automatically stand revived. In the above
terms all the appeals and the writ petitions are disposed of. The parties are left to bear
their own costs.

Mehar Zulifqar Ali Babu etc. again came before this Court through C.P. 245‑L/95 to
question the validity of the impugned judgment. Another C.P. No. 471‑L/95 was filed
by Humair Hayat Khan Rokhri. The 3rd matter was brought by Attiqur Rehman vide
C.P. No. 585‑L/95. These petitions had arisen out of common judgment of the High
Court on the same controversy. All the matters were, therefore, clubbed together for
their hearing and disposal. It may be noted that Attiqur Rehman moved an application
before the High Court to become party in the proceedings when the arguments had
already been concluded by the parties but the judgment was still to be announced. The

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Advocate‑General did not raise objection for his becoming a party. This being so, the
applicant, Attiqur Rehman was made party in the case with the following order:‑‑

"C.M. No. 1745/94 and C.M. 1764/94, have been moved by Rai Attiqur Rehman and
Mr. Zulfiqar Ali Bajwa respectively for impleading them as parties in this appeal. Their
case is that they were members of the dissolved Local Councils and would be affected
by the decision in the appeal for if the appeal is accepted they would also be the
beneficiaries. Learned counsel for the said petitioners appearing today stated that if the
petitioners appearing are made parties they will not press for the rehearing of the
appeal as they would adopt the arguments already addressed favour of the appeal.

C.M. No. 1746 of 1994 has been moved by Rai Atiq‑ur‑Rehman for issuance of a
direction to the Provincial Government not to hold fresh local bodies elections till the
disposal of the appeal, because if the same are allowed to be held it would create
complications.

Learned Advocate‑General states that in principle the Provincial Government has .no
objection to: the grant of the prayers made in these miscellaneous applications. We also
on considering the prayer to stay forthcoming local bodies elections find the same
reasonable for if ultimately the appeal succeed the entire exercise of holding of local
bodies elections and spending huge amount from public exchequer would be futile
exercise and go waste which eventuality in the interest of justice should be avoided.

For the foregoing reasons, these petitions are allowed. The petitioners are impleaded as
appellants in the appeal. As they do not want to advance further arguments, therefore,
no further hearing is necessary as consequence of their impleadment. The Provincial
Government is hereby restrained from holding local bodies elections till the disposal of
the appeal. This disposes of these miscellaneous applications."

On 26th May 1996 leave to appeal was granted to the appellants observing:‑‑

"There is prima facie force in the argument of the learned counsel. Leave to appeal in
the aforementioned petition is, therefore, granted. These connected matters shall be
heard and decided in the 3rd week of June 1996. In view of the importance having
been involved in the cases, a request may be conveyed to the Hon'ble Chief Justice of
Pakistan for constitution of a larger Bench for hearing the appeals. Interim relief
already given in Civil Petition No. 585‑L/95 (Attiqur Rehman v. Government of the
Punjab etc.) would continue till the final hearing of the appeals."

2. We have heard Syed Iftikhar Hussain Gillani, Mr. Maqbool Illahi Malik and Ch.
Muhammad Farooq learned Advocates on behalf of the appellants. The respondents
were represented by Mian Abdul Sattar Najam, learned Advocate=General Punjab.
Syed Iftikhar Hussain Gillani has submitted that the respondent, Government did not
challenge the judgment of the Lahore High Court under which beyond a specific
period, the local bodies were ordered to be revived, in case, fresh elections were not

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held. The fresh elections were not held as undertaken by the Government within the
stipulated period and as such, the Local Councils throughout the Province of Punjab
stood revived automatically by operation of the impugned judgment. He argues that
mala fide on the part of the Government was established inasmuch as twice clear
commitments were made by it to hold elections but the undertaking was never' fulfilled
by giving a positive schedule to that effect. He has submitted that there was no
jurisdiction/powers vested in the Government to deprive the appellants to complete
their term of office under section 26 of the Ordinance read with Articles 2, 2A and 17
of the Constitution of Islamic Republic of Pakistan, 1973. He contends that full tenure
of 5 years as fixed under section 26 of the Ordinance had to be ordered to be
completed by the appellants to meet the ends of justice. It is added that issuance of
notification by Government curtailing the tenure of the local bodies was an act without
jurisdiction, mala fide, coram non judice and as such it did not exist in law.

3. Mr. Maqbool Illahi Malik, learned counsel for the appellants has stated that validity
of section 26‑A of the Ordinance was open to objection because it was surely a case of
excessive delegation of legislative powers by the Legislature to the executive which
was forbidden by law. To support the plea, he has relied upon the Province of East
Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854) and Haji Ghulam Zamin and
another v. A.B. Khondkar and others (PLD 1965 Dacca 156). He has maintained that
the tenure of the local bodies could not be shortened or brought to an end abruptly on
the pretext of allegations of corruption or embezzlement of public funds. He has urged
that no such drastic action could be taken unless the allegations were proved in a Court
of law on the basis of concrete evidence. According to the learned counsel, there was
no proof as warranted by law, to, suspend/curtail the tenure of the appellants. He has
relied upon sections 26 * and 159 of the Ordinance. According to the learned counsel,
the appellants had the vested right to complete their term of five years. At any rate, it
could not be curtailed under the given facts and circumstances of this case. He has
drawn our attention to section 159 of the Ordinance to submit that in case of serious
allegations against Local Councils, they could be suspended for a period of two months
only and certainly not beyond that. It has been brought to our notice that there were no
provisions in the Ordinance, under which the whole system of Local Bodies could be
ended in an arbitrary manner. Ch. Muhammad Farooq, Advocate appearing on behalf
of Muhammad Ashraf Jaura, applicant in C.M.A. 347 of 1996 for impleading him as
appellant in Civil Appeal No. 1254/96 has also argued with our permission that the
expression "curtailment" has been 'defined in Black's Law Dictionary to state that
curtailment does not mean to abolish. The definition as contained in the above is as
follows:‑‑

"Curtail".‑‑To cut off the end or any part of, hence to shorten, abridge, diminish, lessen,
or reduce; and term has no such meaning as abolish."

We did not pass any order one way or the other on the aforesaid application of Ch.
Muhammad Farooq for his client to become party in these proceedings as it was not
considered to be appropriate.

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4. Mian Abdul Sattar Najam, the Advocate‑General Punjab while forcefully refuting
the arguments of the counsel for the appellants had submitted that the appellants were
involved in the embezzlement of public funds at a very large scale. He states that
several criminal cases have been registered against them for misappropriation of public
money. To support his plea, he has read before us several documents to show that the
appellants were guilty of corruption. On this basis, he argues that the appellants were
not entitled to be reinstated in their offices because of their massive
irregularities/embezzlement/corruption. Learned Law Officer has also extensively
quoted from the Holy Qur'an to demonstrate that impugned action on the part of
Government was justified. He relied upon:‑

Allah doth command you To render back your Trusts To those to whom they are due
And when ye judge Between man and man, That ye judge with justice: Verily how
excellent Is the teaching which He giveth you! For Allah is He Who heareth And seeth
all things. (S IV. 58).

Contend not on behalf Of such as betray Their own souls: For Allah loveth not One
given to perfidy And crime. (S IV. 107).

The (selfish) soul of the other Led him to the murder Of his brother: he murdered Him,
and became (himself) One of the lost ones. (S. V. 33).

O ye that believe! Betray not the trust Of Allah and the Apostle, Nor misappropriate
knowingly Things entrusted to you. (S. VIII. 27).

And O my People: Give Just measure and weight, Nor withhold from the people The
things that are their due: Commit not evil in the land With intent to do mischief. (S.XI.
85).

Verily Allah will defend (From ill) those‑who believe: Verily, Allah loveth not Any that
is a traitor To faith, or shows ingratitude. (S.XXII. 38).

Who make mischief in the land, And mend not (their ways). (S.XXVI. 152).

Then, is it To be expected of you, If ye will do no mischief In the land, and break Your
ties of kith and kin? (S.XLVII.22).

Such are the men Whom Allah has cursed For He has made them Deaf and blinded
their sight.

And do not eat up Your property among yourselves For vanities, nor use it As bait for
the judges, With intent that ye may Eat up wrongfully and knowingly A little of (other)
people's property (S.AI‑Baqara, V. 188).

In this background of Holy Injunctions as mentioned above, the Government was

justified to curtail the tenure of the appellants on the basis of their misdeeds. He has

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heavily relied upon the observations of the learned Single Judge which were upheld by
the Division Bench holding that the appellants were not fit to remain in their offices
because of the serious allegations having been levelled against them. These
observations are as follows:‑‑

"Specific case was set up by the Government that to obviate further misuse of funds;
resources and powers and to avoid interference in the general election, in the interest of
the greater public good, the period had been curtailed vide the impugned notification.
Though the Election Authority could have proceeded against the individual councillors
for breach of the provisions of section 21‑A and Rules 19 and 20 referred to above and
the Government could have taken action against individual local councils under section
159 of the Ordinance but in view of the large number of local councils and the
councillors and office‑bearers, head of the general elections and also from the very
nature of the Government i.e. care‑taker, it would have been impossible for the
Election Authority or the Government to deal with breaches and delinquencies. The
Administration would have been rather swamped as claimed by the respondent
Government. The stand of the Government that it was in the larger public good that the
period was curtailed so that .the elections could be free, fair and transparent without
any interference from local councils/Councillors seems to be correct. However, the
contradiction is the situation created by section 21‑A of the Ordinance, Rules 19 and
20 of the Conduct Rules and the proviso to the main section is a matter for the
Legislature to consider.

I have, therefore, no hesitation in concluding that the good of the public rather greater
good of the public demanded that the sitting councillors be removed from the scene. "

Learned Law Officer has brought to our notice that the appellants have also instituted
writ petitions in the nature of Quo Warranto in the High Court for obtaining the relief
which is being sought through these appeals from this Court. He prays for dismissal of
these appeals because they could not be permitted to continue during the pendency of
these petitions before the High Court. Mr. Maqbool Illahi Malik, learned counsel has,
nevertheless, stated that the appellants had moved application for withdrawal of the
writ petitions having been instituted by them in the High Court. All such petitions may,
therefore, be deemed to have been withdrawn in view of his statement before the
Court.

5. After hearing the learned counsel for the parties on a number of days I and perusing
the record, we have come to the conclusion that the impugned, conditional judgment of
the High Court was not sustainable. The judgment of the learned Single Judge was to
the effect that if by a particular date, the elections were not held, the local bodies
would stand revived. This view was upheld by the Division Bench. The respondent,
Government appeared to have been fully satisfied with the judgment of the High Court.
This being the reason, they did not further assail the validity of the impugned judgment
before this Court. According to the notification dated 15th of August 1993, the
elections were to be held in the month of January 1994 which were not held for no
plausible reasons. No schedule in that behalf to hold elections was given by the

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competent authority. The target period, ended without holding the elections. In our
view, the local bodies stood automatically revived without attaching any conditions
after the specified period. It may also be noted that under section 26‑A of the
Ordinance, life of the local bodies was curtailed with an object to hold free, fair and
transparent general elections in the country by the then care‑taker Government. To
achieve this object, the local bodies would, of course, be deemed to have been
suspended for a short while and certainly not or. permanent basis. In our view, this was
done for a limited period in order to disable/ incapacitate the local bodies to interfere
with the outcome of the general elections. We, therefore, hold the view that power
under section 26‑A of the Ordinance could only be used for a limited period to achieve
the specific objective of holding fair elections as was the position which prevailed in
this case. The said objective was, undoubtedly, achieved by the care‑taker Government
by holding fair and just election. Meaning of word "curtail" as given in the Balck's
Law Dictionary and already quoted above shall not mean to abolish. "Abolish" means
as given in "Dictionary MacMillan‑William D. Halsey" in the following manner "to
put an end to; do away with completely; to abolish poverty (french aboliss a stem of
abolir, from Latin abolere to destroy) abolishable, adj. abolisher, abolishment, n. Syn.
abolish, annihilate, exterminate refer to making an end of something. Abolish applies
more to human usages, as laws, traditions, customs and ideas, than to physical things:
Slavery was abolished in the British Empire in 1807. Annihilate indicates the complete
destruction of the object of the verb; it means to wipe out beyond hope of being
revived: One cannot really conceive of the human rare‑ being annihilated. Exterminate
also indicates complete destruction, but is usdally used of things considered to be bad:
They succeeded in their effort to exterminate the termites." (Dictionary Macmillan,
William D. Halsey/Editorial Director, Macmillan Publishing Co., Inc., New York,
Collier Macmillan Publishers, London). This will clearly show that the "local bodies"
as elected on 28‑12‑1991 by the people of the Province of Punjab could not be ended
as a whole by one stroke of pen in the fashion it had been done without giving any
valid reasons. After the said exercise of general elections was over the local bodies
should have been revived by issuing another notification to meet the ends of justice.
This was not done nor fresh elections as stated above, were held for no reasons at all.
This could not be so held by the High Court although the revival of the local bodies
was announced conditionally on the plea of allegations of corruption. The appellants
were duly elected by the electorate on the basis of adult franchise in a fair and
transparent election for a fixed term of five years. The remedy to rectify the
malpractices or corruption alleged to have been committed in the elections had also
been provided in the Ordinance by way of filing election petitions. It may be presumed
that such remedies might have been availed of by the aggrieved persons within the
meaning of law. There is a provision having been enacted in section 159 of the
Ordinance which would provide a remedy through an action to be taken against a local
council' or councils which was/were not running its/their offices in the prescribed
manner. Section 159 reads as follows:‑‑

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"159. Suspension and dissolution of a local council.‑‑‑(1) Government may, by

notification, suspend a local council if there are reasons to believe that a local council
‑‑

(a) is unable to discharge or persistently fails to discharge its duties;

or

(b) is unable to administer its affairs or meet its financial obligations; or

(c) generally acts in a manner contrary to public interest; or

(d) otherwise exceeds or abuses its powers.

(2) On the publication of a notification under subsection (1)‑‑

(a) persons holding offices as chairman and members of the local council shall cease to
hold office;

(b) all functions of the local council shall, during the period of suspension, be
performed by such person or authority as Government may appoint in this behalf; and

(c) all funds and property belonging to the local council shall, during the period of
suspension, vest in Government.

(3) Government shall hold or cause to be held an inquiry into charge on which a local
council is suspended. If, within a period of two months from the date of the suspension
of the local council, the inquiry is not completed, the council shall stand revived.

(4) If, as a result of the inquiry, the charges against the local council are proved,
Government may dissolve the local council.

(5) When a local council is dissolved ‑‑‑

(a) Government shall hold fresh elections within three months from the date of
dissolution if the remaining term of the local council is not less than nine months and
the term of office of the local council so reconstituted shall be the residue of the
original term;

(b) if the remaining term of its office is less than nine months, the person or authority
referred to in subsection (2) shall, continue to perform the functions of the Local
Council and its fund shall continue to vest in Government till the reconstituted Local
Council assumes office. "

There is no doubt that the Government possesses the powers to suspend a Local
Council or Councils under the afore-quoted section if it has the reasons to believe that
a particular council has failed to discharge its functions or administer its financial

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obligations or has been proceeding against the very public interest or is abusing its
powers in the discharge of its functions. Suspension period shall be two months in
which enquiry has to be conducted against the delinquent council. If the requisite
enquiry is not held within the stipulated period, the suspended council shall stand
revived. Subsection (3) of the section is the pivotal provision under which the local
council can also be dissolved provided charges against it are proved. Subsection (5)
has provided that fresh elections to that dissolved local council would be held within
three months from the date of dissolution of the said council. It is evident that no such
action as mentioned above was ever taken in this case by the competent authority to
meet the requirement of law. It is also clear that such an action could not be taken at
random against all the local councils in the Province of Punjab by giving it a blanket
cover in one exercise under the garb of section 26‑A which had its limited application
as had already been held above to meet a different situation. This being the position,
the Government can take action in the light of the above provisions against that local
council against which charge of corruption had been levelled or for some other
specified reason/reasons. In any case, it does not empower the Government to pack up
the whole Local Government system as has been done in this case. Apart from the
above, the appellants were proceeded against without providing them an opportunity of
hearing. They were condemned unheard which is against the spirit of natural justice
contained in the adage, audi alteram partem. Right of hearing has also been given to
the affected council/councils under section 159 of the Ordinance. The issuance of
impugned notification curtailing the tenure of the appellants can be struck down on the
sole ground that they were not heard before proceeding against them in a regular
manner. We agree with the learned counsel for the appellants that the Government did
not want to conduct the elections as under‑taken by it from time to time. We are also in
agreement with the learned counsel that issuance of notification to dissolve the local
bodies was based on bad faith to defeat the very spirit of law. The action was therefore,
coram non judice on the face of it. In this background, we feel no hesitation to declare
the issuance of Notification No. SOV(LG)3‑32/93 dated 15th August, ,1993, to be
without jurisdiction. It is liable to be set aside. In this view of the matter, the appellants
are held to be entitled to be reinstated in their offices so as to enable them to complete
their remaining term. The argument of the learned counsel for the appellants that the
period for which the elected bodies remained out of office might be extended to them,
could not be entertained for its serious consideration inasmuch as there were no
provisions in the Ordinance under which the relief asked for could be given to them.
Answer to this question is also available in subsection (5) of section 159 of the
Ordinance which commands that the fresh election to the dissolved local council shall
be held within three months and the newly‑constituted local council shall remain in
office for the residual term. The contention of the learned counsel being misconceived,
is overruled. In the situation prevailing at present, the objection relating to the
excessive delegation of legislative powers by the Legislature to the executive is not
required to be looked into further as we understand that the Ordinance has been
repealed by passing an Act by the Punjab Assembly. This question may, therefore, be
left open to be dealt with in some other appropriate proceedings.

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6. Coming back to the controversy, we do not find any force in the argument of the
learned Law Officer that the appellants had indulged in large scale corruption in the
misappropriation of public funds and as such were rightly deprived of their public
offices. He may be right to the extent that there were allegations of corruption against
the appellants. There was no proof brought on record to show that they were ever
convicted by competent Courts on the basis of corruption or misappropriation of public
funds. In our considered view, these allegations would remain mere allegations unless
they were established on the basis of evidence. Unless and until it is proved that the
appellant had misappropriated public funds, they could not be declared disqualified to
hold public offices on which they were inducted by the people. A voluminous
documentary evidence which was read before us by the Advocate‑General could not be
placed before this Court in a regular manner nor it was brought before the High Court
for its consideration. No such documents were even placed on record today alongwith
application to do so nor copies thereof, were given to the appellants to enable them to
raise objections about their validity well in time. This being so, this evidence could not
be allowed to be used against the appellants in these proceedings. The verses of Holy
Qur'an, produced and relied upon by the leaned Advocate‑General would not support
his case in any way whatsoever. Nowhere it has been commanded by Allah Almighty
that mere allegations can be enough to deprive a person of his right as has been done
by the Government in this matter in a summary manner. These Holy Injunctions cannot
at all be made applicable to the facts and circumstances of this case. The following
verses from the Holy Qur'an, although not cited by the Advocate General, may throw
light on the mode of evidence:‑

And they both rushed to the door; and she (grasped and) rent his tunic from behind and
(lol) they met her lord at the door!

Said she: "What ought to be the punishment of one who had evil designs on (the virtue
of) thy wife‑(what) imprisonment or a (yet mere) grievous chastisement? (S.XII 25).

(Joseph) exclaimed: "It was she who sought to make me yield myself unto her!" Now
one of those present, a member of her own household, suggested this: If his tunic has
been torn from the front, then she is telling the truth, and he is a liar; (S.XII 26).

But if his tunic has been torn from behind, then she is lying, and he is speaking the
truth." (S.XII 27).

And when (her husband) saw that his tunic was torn from behind, he said:, "Behold, is
(an instance) of your guile, . Owomankind! Verily, awesome is your guile! (S.XII 28).

(But), Joseph, let this pass! And thou, (O wife,) ask forgiveness for thy sin for, verily
thou has been greatly at fault!" (S.XII 29).

Allah, Almighty has ordained in the above‑quoted verses about the punishment which
may follow only on the basis of availability of proof of unimpeachable character, The
episode of Hazrat Yousaf shall show/demonstrate the way in which an allegation is to

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be proved beyond doubt on the basis of reliable evidence. Hazrat Yousaf was followed
by a woman with an evil design to fulfil her sexual lust. To satisfy her desire, she
caught the shirt of Hazrat Yousaf from behind and in the result, the shirt of the latter
was found to have been torn from behind and not from the front side. This incident
provided credible evidence to condemn the woman to be a liar and the Prophet of Allah
Almighty was declared to be innocent. These Holy Injunctions are sufficient to hold
that mere allegations cannot be made the basis to condemn the appellants to be corrupt
in; order to disqualify them from being the chosen representatives of the people.

7. Even the last argument of the learned counsel that quo warranto writ petitions were
pending adjudication in the High Court equally did not persuade us to agree with him
inasmuch as, on the basis of the statement of the learned counsel for the appellants, the
writ petitions so filed would be deemed to have been dismissed as having been
withdrawn by them. In this view of the matter the arguments of the learned
Advocate‑General are repelled being without any substance.

8. Upshot of the above discussion is that the judgment dated 19‑2‑1995 of the Lahore
High Court is set aside by Accepting Appeals Nos:1254 and 1255 of 1996. Appeal
No.1256 of 1996 was not pressed by Mr. Aitzaz Ahsan, learned counsel for the
appellants and as such, it is disposed of. In the peculiar circumstances of these cases,
there shall be no order as to costs. On 26‑6‑1996. the following short order was passed
by this Court:‑‑

"For reasons to be recorded later on, we allow Civil Appeals Nos. 1254 and 1255/96
and set aside the impugned judgment dated 19‑2‑1995 of the Division Bench of the
Lahore High Court and order restoration of all the local bodies/councils in the Province
of Punjab to enable them to complete their term up to 9‑2‑1997, as contemplated under
section 26 of the Punjab Local Government Ordinance, 1979. C.A. No.1256/96 is
disposed of as not pressed.

'The learned counsel for the appellants have stated and undertaken before us that the
appellants would withdraw writ petitions if filed by them seeking relief in the shape of
quo warranto connected with the subject‑matter of these appeals."

The above are the reasons in support of the said order passed on that day. In the end,
we are grateful to all the learned counsel for the ability knowledge and industry with
which they assisted us in the discharge of our duty while deciding the controversy
involved between the parties.

A.A./Z‑217/S. Order accordingly.

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