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Petitioner: SHAHID NABI MALIK and another VS Respondent: CHIEF ELECTION COMMISSIONER, JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Fazal Karim, Saeeduzzaman Siddiqui, Ajmal Mian Title:SHAHID NABI MALIK and another vs CHIEF ELECTION COMMISSIONER,
JUDGMENT
Reported As: PLD 1997 Supreme Court 32 Result: Appeal accepted Judgment JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned two direct appeals before this Court are filed against the decision of Election Tribunal, Punjab, Lahore, dated 28-9-1995 passed in Election Petition No,5 of 1994, under section 67(2) of the Representation of the People Act, 1976. 2. The relevant facts of the case are that in the bye-election against the National Assembly Seat No, NA-95, Lahore, which fell vacant on account of resignation of Mian Nawaz Sharif, held on 2-12- 1993 Muhammad Ishaq Dar appellant in Civil Appeal No,1025 of 1995 and respondent No,3 in Civil Appeal No,1024/1995 was declared elected having secured 39483 votes. His closest rival in the election Shahid Nabi Malik, appellant in Civil Appeal No, 1024 of 1995 and respondent No,3 in Civil Appeal No,1025 of 1995, secured 23825 votes. For the sake of convenience, we will refer the appellant in Civil Appeal No,1025 of 1995 and respondent No,3 in Civil Appeal No,1024 of 1995 as Mr. Dar and appellant in C.A. 1024/95 and respondent No,3 in C.A. 1025/95 as Mr. Malik. The remaining contesting candidates in the constituency, S. Almas Haider Kazmi, Aqil Ahmed, Syed Qaiser Shah and Nawab Amber Shahzada secured 103, 49, 43 and 26 votes respectively. The election of Mr. Dar was challenged by Mr. Malik before the Election Tribunal, Punjab, on the ground that Mr. Dar was disqualified for being a candidate of Majlis-e-Shoora on the date of his election as he was in the service of Pakistan and the prescribed period of two years had not elapsed since he resigned from his office. It was also asserted before the Tribunal by Mr. Malik that disqualification attached to Mr. Dar was also so notorious that the votes cast in his favour in the bye-election shall be deemed to have been thrown away and as such he was entitled to be declared as elected in place of Mr. Dar.
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3. The learned Tribunal, after framing issues in the case, recording evidence of parties and hearing the counsel of contesting parties, held that Mr. Dar suffered from the disqualification prescribed under Article 63(1)(k) of the Constitution of Islamic Republic of Pakistan (hereinafter to be called as 'the' Constitution') and as such his election to the National Assembly Seat No, NA-95 Lahore, in the bye-election held on 2-12-1993, was void. The learned Tribunal, however, did not agree with the contention of Mr. Malik that the votes cast in favour of Mr. Dar in the bye-election be treated as thrown away votes and he be declared elected in place of Mr. Dar. The learned Tribunal, accordingly, after setting aside the election of Mr. Dar to the NA-95 Lahore, seat of National Assembly, directed the Election Commission, to hold fresh election to the above seat of National Assembly. The impugned order of learned Tribunal gave rise to the abovementioned to civil appeals, one by Mr. Dar and the other by Mr. Malik. We have heard at length Mr. Muhammad Akram Sheikh for Mr. Dar, Mr. Shahzad Jahangir for Mr. Malik and Raja Muhammad Bashir, Deputy Attorney-General, on Court notice. 4. The learned counsel for Mr. Dar contended that sub-clauses (k) and (o) of clause (1) of Article 63 of the Constitution are to be read with sub-clauses (d) and (e) ibid as these sub-clauses, which were added subsequently in Article 63 of the Constitution by P.0.14 of 1985, merely provided for further disqualifications for the categories of persons mentioned in sub-clauses (d) and (e) ibid. The learned counsel firstly, contended that Mr. Dar by accepting the office of Vice-Chairman, Pakistan Investment Board (P.I.I3.) could not be treated as in the service of Pakistan. The learned counsel next contended that even if the Court reaches the conclusion that Mr. Diu was in the service of Pakistan, he did not hold any office of profit in the service of Pakistan as no salary, remuneration, fee or benefits of any other kind was attached to his office. ' It is, accordingly, contended that Mr. Dar did not suffer from any of the disqualifications mentioned in Article 63 of Constitution at the time of his election to the seat of National Assembly. 5. The learned counsel for Mr. Malik on the other hand contended that the legislature by introducing sub-clause (k) in Article 63 ibid created a new category of persons, namely, those who had been in service of Pakistan and two years' period had not elapsed since they ceased to hold such office, who were held disqualified from being elected or from being the member of Majlis-eShoora. According to learned counsel, this new category of persons is quite distinct and separate from those mentioned in sub-clauses (d) and (e) ibid. The learned counsel urged that Mr. Dar was appointed by the Government as Vice-Chairman, P.I.B. And he was in the service of Pakistan before he resigned, and as the prescribed period of 2 years had not passed since he ceased to hold that office he was disqualified from being elected as member of National Assembly. The learned counsel contended that whether Mr. Dar held an office of profit or not is not material as he stood disqualified by merely being in the service of Pakistan. The learned counsel for Mr. Malik in the alternative also urged that it is not correct to say that Mr. Dar's office was not remunerated or that he was not holding any office of profit in the service of Pakistan, as he was conferred the status of a Minister of State which carried with it perks like, salary, accommodation, transport etc. The learned counsel, accordingly, contended that from whichever angle the case is examined, we cannot escape the conclusion that Mr. Dar was disqualified from being elected as a member of Parliament on the date of his election. 6. Articles 62 and 63 of the Constitution prescribe qualification and disqualifications respectively for membership of Majlis-e-Shoora. The original Article 63(1) of the Constitution which dealt with the disqualifications for membership of Parliament, contained only the following sub-clauses (a) to (e):-- "63. Disqualifications for membership of Parliament.---(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if- (a) he is of unsound mind and has been so declared by a competent Court; or
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(b) he is an un discharged insolvent; or (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or (d) he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is so disqualified by Act of Parliament. (2) ' Present Article 63 was substituted in the Constitution by P.O. 14 of 1985. The substituted Article 63, besides containing the original sub-clauses (a) to (d) added sub-clauses (e) to (p) in clause (1) which provided for new grounds of disqualifications for membership of Parliament. We are here concerned only with the newly-added sub-clauses (e), (k) and (o) of clauses (1) of Article 63 of the Constitution which read as follows:-- "63................................................. (e) he is in the service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest; or (f) ............................................... (k) he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has controlling share or interest unless a period of two years has elapsed since he ceased to be in such service; or (1) ................................................................... (o) he holds any office of profit in the service of Pakistan other than the following offices, namely:-- - (i) an office which is not whole-time office remunerated either by salary or by fee; (ii) the office of Lumbardar, whether called by this or any other title; (iii) the Quami Razakars; (iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a force; or." Article 63(1) (d) of the Constitution declares a person who holds an office of profit in the service of Pakistan from being elected or being the member of Parliament, unless the office held by him is declared by law, not to disqualify its holder. It is, therefore, quite clear that a person who does not hold an office of profit in the service of Pakistan, is not debarred from being elected or being the member of the Parliament. As a necessary corollary a person merely by virtue of his being in the service of Pakistan is not debarred from being elected to the member of the Parliament under Article 63(1)(d) ibid, unless he also holds an office of profit in such service. The expression "he holds an office of profit in the service of Pakistan" used in Article 63(1) ibid, clearly implies that in order to attract the disqualification mentioned in this provision, the person must be holding the office of profit in the service of Pakistan on the date of his election to the Parliament. Therefore, a person who ceases to hold the office of profit in the service of Pakistan before the date of such election does not fall within the mischief of this Article. We need not emphasize here that the provisions of Article 63 of the Constitution are to be construed strictly as they relate to the disqualification of a person, from being elected or being the member of Parliament. It is a well-established rule of interpretation that while construing a provision of this nature and holding a person disqualified, the case must fall both within the letter and spirit of the provision. 5. The learned counsel for Mr. Dar contended before us that sub-clauses (d), (e), (k) and (o) of clause (1) of Article 63 of the Constitution are to be read together to discover the true intention of the Legislature and the real meaning and scope of these provisions. The learned counsel for Mr. Malik on the other hand maintained that each sub-clause of clause (1) of Article 63 ibid is to be read separately as the disqualifications mentioned in each sub-clause deal with separate and distinct category of persons disqualified from being elected or from being the member of
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Parliament. The learned Tri\bunal in the impugned judgment held Mr. Dar disqualified from being elected as member of National Assembly under sub-clause (k) of clause (1) of Article 63 of the Constitution, as on the date of his election as a member of National Assembly the prescribed period of two years had not elapsed between the date he ceased to hold the office of Vice- Chairman P.I.B. And the date of his election. The learned tribunal repelled the contention of Mr. Dar as he was not holding any office of profit in the service of Pakistan, he was not disqualified from being elected or from being the member of National Assembly. The learned Tribunal held that in order to attract the disqualification mentioned in sub-clause (k) it was not necessary that the person should have held any office of profit in the service of Pakistan. In the view of learned Tribunal it was sufficient to disqualify a person from being elected or being the member of Parliament under Article 63 (1)(k) ibid, if he was in the service of Pakistan and two years' period had not elapsed on the date of his election to Parliament from the date he ceased to be. In the service of Pakistan. The moot point for consideration, therefore, in the case is, whether the Legislature by introducing sub-clause (k) of clause (1) in Article 63 of the Constitution intended to disqualify a person from being elected or from being the member of Parliament, simpliciter on the ground that he was before his election in the service of Pakistan and on the date of his election a period of two years had not elapsed from the date he ceased to hold that office; or, sub-clause (k) ibid disqualified only such person from seeking election to a seat of Parliament or from being a member of Parliament who held the office of profit in the service of Pakistan and two years' period had not passed on the date of his election since he ceased to hold such office. To discover the true meaning and import of sub-clauses (d), (e), (k) and (o) of clause (1) of Article 63 ibid and the real intention of law-givers in enacting these provisions, it is necessary in our opinion to briefly recapitulate the background of these amendments. 6. On 5th July, 1977, Martial Law was proclaimed in the country after dismissing the then Civilian Government. As a result of proclamation of 5th July 1977, the Constitution was held in abeyance, but fresh elections to Parliament and Provincial Assemblies were promised. The Martial Law Authorities on 28-7-1977 promulgated Houses of Parliament and Provincial Assemblies (Election) Order (P.O. 5 of 1977) which provided for holding of general elections in the country in October 1977. Article 10 of P.O. 5 of 1977 laid down the qualifications and disqualifications for membership of Parliament which were as follows:--- "10. Qualifications and disqualifications for membership of Parliament.--(1) A person shall not be qualified to be elected or chosen as member of Parliament unless, as provided in Article 62 of the Constitution,-- (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than twenty-five years of age and enrolled as a voter in any electoral roll for election to that Assembly; and (c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and has made oath as provided for in Article 7. (2) A person shall be disqualified from being elected or chosen as, and from being, a member, of Parliament,-- (a) If, as provided in Article 63 of the Constitution,- (I) he is of unsound mind and has been so declared by a competent Court; or (2) he is an un discharged insolvent; or (3) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or (4) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (b) if--
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(1) he has been, on conviction for any offence which in the opinion or the Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of two years has elapsed since his release; or (2) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or (3) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct, unless a period of three years has elapsed since his removal of compulsory retirement; or (4) he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or (5) he is found guilty of a corrupt or illegal practice under any other law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or (6) he has, at any time on or after the twentieth day of December, 1971, been an office-bearer of a political party disclosed under subsection (2) of section 6 of the Political Parties Act, 1962 (III of 1962), and has not, before a declaration in respect of such party is made under subsection (1) of that section, resigned, or publicly announced his dissociation, from such party, unless a period of five years has elapsed from the date of such dissolution; or (7) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or (8) if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government: ' Provided that the disqualification under this paragraph shall not apply to a person--- (i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him or such longer period as the President may, in any particular case, allow; or (ii)where the contract has been entered into by or on behalf of a public company as defined in the Companies Act, 1913 (VII of 1913), of which he is a shareholder but is neither a director holding an office of profit under the company nor a managing agent; or (iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on the separate business in which he has no share or interest; or (9) he holds any office of profit in the service of Pakistan other than the following offices, namely :-- (i) an office which is not a whole-time office remunerated either by salary or by fee; (ii) the office of Lumbardar, whether called by this or any other title; (iii) the Qaunsi Razakars; (iv) any office the holder whereof, by virtue of holding such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a force. ' Explanation I--In sub-paragraph (4) Of paragraph (a) and sub-paragraph (9) of paragraph (b) "service of Pakistan" has the same meaning as in Article 260 of the Constitution. ' Explanation II--In sub-paragraph (6) of paragraph (b) "office-bearer of a political party" means an office-bearer at the National or Provincial set-up of the party otherwise than as a mere member of the working, Central, Provincial or other Committee of party. ' Explanation III---In sub-paragraph (8) of paragraph (b), "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply.
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(3) If a person, having been elected to a House or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself from that party, he shall from the date of such withdrawal, be disqualified from being a member of the House or the Assembly for the unexpired period of his term unless he has been re-elected at a bye-election held after his disqualification." The grounds of disqualifications mentioned in sub-clauses (1) to (4) of clause (2) (a) of Article 10 ibid were identical to those stated in sub-clauses (a) to (d) of clause (1) of original Article 63 of the Constitution. However, sub-clauses (1) to (9) of clause 2(b) of Article 10 ibid provided for new grounds of disqualifications for membership of Parliament. These new grounds of disqualifications mentioned in sub-clauses (2) to (5) and (7) to (9) of Article 10 of P.O. 5 of 1977 were re-enacted as sub-clauses (i) to (o) of clause (1) of Article 63 which was substituted in the Constitution by P.O. 14 of 1985. The position both under original Article 63 (1) (d) and Article 10 (2) (a) (4) of P.0.5 of 1977 was that a person holding an office of profit in the service of Pakistan was disqualified from being elected and from being member of Parliament, unless under some law the holder of such office was declared not so disqualified. However, on the language of Article 63 (1) (d) of the Constitution or Article 10(2) (a) (4) of P.O. 5 of 1977, a person who may be in the service of Pakistan on the date of his election but not holding any office of profit could not be held disqualified from being elected or being a member of the Parliament. The effect of enacting sub-clause (4) of clause (2)(b) of Article 10 of P.O. 5 of 1977, however, was that all persons who were in the service of Pakistan or a statutory body or anybody which was owned or controlled by the Government or in which the Government had controlling share but had ceased to be in such service on the date of election were also disqualified from being elected or being the member of Parliament, if a period of 2 years had not elapsed on the date of election from the date they ceased to hold their office. We may mention here that Article 10(2)(b)(4) though disqualified a former employee of a statutory body or a body controlled by Government or in which the Government had the controlling share from being elected to the Parliament or from being a member of Parliament, if a period of 2 years had not passed since he ceased to be in the service of such a body, but this disqualification was not attracted in the case of a person who was serving in such organisation on the date of his election. This created anomalous position inasmuch as under Article 10(2)(b)(4) of P.0.5 of 1977 a person who was former employee of a statutory body or anybody controlled by Government or in which Government had controlling share stood disqualified from being elected or chosen as a member of Parliament or from being a member of the Parliament but a person who was in the service of such an organisation remained outside the mischief of this provision. This obvious anomaly was later sought to be rectified by the legislature by enacting sub-clause (e) of clause (1) of Article 63 ibid, which provided for disqualification of a person who on the date of election was in the service of any statutory body .Or anybody which is owned or controlled by the Government or in which the Government had a controlling share or interest, from being elected or being a member of the Parliament. As pointed out by us earlier, under sub-clause (d) of clause (1) of Article 63 ibid, a person in the service of Pakistan if he does not hold an office of profit is not disqualified from being chosen or elected or from being the member of Parliament. However, if we interpret sub-clause (k) of clause (1) of Article 63 of the Constitution as suggested by the learned counsel for Mr. Malik and as held by the learned Tribunal, it will lead to absurd result as a person who is in the service of Pakistan on the date of election but does not hold any office of profit, will be eligible for being chosen or elected or being the member of the Parliament under sub-clause (d) ibid; while a person who has ceased to be in the service of Pakistan before election but 2 years' period had not passed since the date he ceased to hold such office will be disqualified from being chosen or elected or being the member of Parliament under sub-clause (k) ibid. Can such inconsistency and absurdity be attributed to the law-givers? The answer to this is plainly in the negative. It is well-established principle that while interpreting a
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Constitutional provision it must be remembered that a Constitution unlike a statute cannot be changed or amended frequently. A document of such a basic nature is not merely the imprisonment of past but is also alive to the future aspiration and need of the nation. Therefore, while interpreting a Constitutional document it must be read and considered as a whole to discover the true intention of its framers. It is for these reasons that no redundancy, surplusage, absurdity or inconsistency can be attributed to the framers of the Constitution. The rule of harmonious interpretation provides that the Court while literally interpreting a provision of the Constitution notices apparent inconsistency as a result of such construction with another provision of the Constitution on the same subject, it may not follow the grammatical and literal construction of the words and adopt a construction which would harmonise the two apparently conflicting provisions and make their working purposeful and in accordance with the intention of Legislature. The rule of harmonious interpretation in case of conflict was stated by the Supreme Court of India in the case of M. Pentiah v. Veeramallappa AIR 1961 SC 1107, as follows:-- "Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the…
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