Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ENGR. IQBAL ZAFAR JHAGRA and anothers VS Respondent: KHALILUR REHMAN and 4 others
Court Name: Supreme Court of Pakistan Judge(s): Mamoon Kazi, Saeeduzzaman Siddiqui, Sh. Ijaz Nisar Title: ENGR. IQBAL ZAFAR JHAGRA and anothers vs KHALILUR REHMAN and 4 others Case No.:Civil Appeals Nos. 659, 660, 684, 685 and 1121 of 1997 C.A. No, 659 of 1997
JUDGMENT
Reported As: 1999 SCMR 2939 Result: Order accordingly Judgment JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---The Chief Election Commissioner (CEC) vide Notification No,F.3(1)/97- Cord(3), dated 23-2-1997 called upon the members of Provincial Assembly of N.-W.F.P. To elect 3 members against the seats, reserved for 'Ulema' Technocrats' and other professional' in the Senate for the Province of N.-W.F.P. Six candidates, Engineer Iqbal Zafar Jhagra (appellant in C.A 659/97) Anwar Kamal Khan (appellant in C.A No, 660/97) Khalilur Rehman (appellant in C.A No, 684 of 1997 and C.A. No,685 of 1997), Syed Iftikhar Hussasin Gillani (appellant in C.A. No,1121 of 1997), Qazi Muhammad Anwar and Muhammad Azam filed their nomination papers for the above three seats of Senate. The Presiding Officer of the Senate Election rejected the nomination papers of Anwar Kamal Khan on the ground that he neither qualified as a technocrat' nor as a 'professional'. However, on an appeal, filed by Anwar Kamal Khan against the order of Presiding Officer rejecting his nomination papers, the Chief Election Commissioner reversed the decision of Presiding Officer and accepted the nomination papers of Anwar Kamal Khan. After acceptance of the nomination of Anwar Kamal as aforesaid, Muhammad Azam one of the candidates withdrew from contest leaving only five candidates in the field. Kazi Muhammad Anwar, a nominee of Awami National Party and Anwar Kamal and Engineer Iqbal Zafar Jhagra, the two nominees of Pakistan Muslim League (Nawaz Group) were declared elected to the three reserved seats of Ulema, technocrats and other 'professional' in the Senate for N.-W.F.P., in the election held on 12th March, 1997.
---
## Page 2
' Three separate Election Petitions, Nos.1 to. 3 of 1997, challenging the election of Engineer Iqbal Zafer Jhagra and Anwar Kamal, were filed before the Election Tribunal N.W.F.P. At Peshawar, two by Khalilur Rehman (Election Petition Nos. 2 and 3 of 1997) and one by Syed lftikhar Hussain Gillani (Election Petition No,1 of 1997). The Hon'ble Election Tribunal by two separate judgments dated 23- 6-1997 declared the election of Engineer Iqbal Zafar Jhagra and Anwar Kamal Khan void but refused to declare Khalilur Rehman and Syed Iftikhar Hussain Gillani as elected in place of Engineer Iqbal Zafar Jhagra and Anwar Kamal Khan. Consequently, the two seats which became vacant as a result of the order of Election Tribunal, are, to be filled through bye elections. ' Civil Appeals Nos. 659 of 1997 and 684 of 1997 have been filed by Engineer Iqbal Zafar Jhagra and Khalilur Rehman respectively, against the order of Election Tribunal declaring the election of Engineer Iqbal Zafar Jhagra as void and refusing to declare Khalilur Rehman elected against the vacant seat of Engineer Iqbal Zafar Jhagra. ' Civil Appeals Nos. 685, 660 and 1121 of 1997 are filed by Khalilur Rehman, Anwar Kamal Khan and Syed lftikhar Hussain Gillani respectively, against the order of Hon'ble Election Tribunal declaring the election of Anwar Kamal Khan void but refusing to declare Khalilur Rehman and Syed lftikhar Hussain Gillani elected in the vacancy of Anwar Kamal Khan. ' We have heard Mr. Shahzad Jehangir, Senior Advocate Supreme Court for Iqbal Zafar Jhagra, Mr. Abdul Karim Khan Kundi, Advocate Supreme Court and Mr. Ibrahim Satti, Advocate Supreme Court for Anwar Kamal Khan, Mr. Fakharuddin G. Ibrahim, Senior Advocate Supreme Court for Khalilur Rehaman and Mr. Iftikhar Hussain Gillani appellant in person in the above appeals. ' The controversy in the above appeals revolves around the interpretation of the word 'technocrat' and 'professional'. Iqbal Zafar Jhagra and Anwar Kamal Khan were elected against the seats reserved for Ulema, 'technocrats and other 'professionals' as a nominee of a political party. Iqbal Zafar Jhagra claimed to be 'technocrat' while Anwar Kamal Khan fought election as a 'professional'. Khalilur Rehman and Iftikhar Hussain Gillani who were also candidates in the senate election as independent alongwith Iqbal Zafar Jhagra and Anwar Kamal Khan for the seats reserved for 'technocrats' and 'professionals' lost the election. In their election petitions before the Hon'ble Election Tribunal, Peshawar, Khalilur Rehman and Iftikhar Hussain Gillani asserted that Iqbal Zafar Jhagra and Anwar Kamal Khan were neither 'technocrats' nor 'professionals' and as such their election to the seats reserved in the Senate for 'technocrats' and 'professionals' was void. The Hon'ble Election Tribunal after analysing the qualifications of Iqbal Zafar Jhagra and Anwar Kamal Khan, came to the conclusion that they were neither 'technocrats' nor professionals' as defined in P.O. 5 of 1977 and as such their election to the seats reserved in the Senate for 'technocrats' and professionals' was void. The Hon'ble Tribunal, however, refused to declare Khalilur Rehman or lftikhar Hussain Gillani as elected in place of Iqbal Zafar Jhagra and Anwar Kamal Khan on the ground that the disqualifications of Iqbal Zafar Jhagra and Anwar Kamal Khan were not of such a notorious nature that the votes polled by them in the election be considered as throw away votes. Accordingly the Hon'ble Election Tribunal directed filling in of the vacancies of Iqbal Zafar Jhagra and Anwar Kamal Khan through bye elections. ' Iqbal Zafar Jhagra and Anwar Kamal Khan in C.A.No, 659 of 1997 and C.A. 660 of 1997 respectively, have challenged the judgments of the Hon'ble Election Tribunal, dated 23-6-1998 declaring their election as void. Khalilur Rehman has filed C.As. 684 and 685 of 1997 and lftikhar Hussain Gillani has filed C.A. No,. 1121 of 1997, challenging the judgments of Hon'ble Election Tribunal refusing to declare them elected against the vacancy of Iqbal Zafar Jhagra and Anwar Kamal Khan. ' The Hon'ble Election Tribunal while declaring the election of Iqbal Zafar Jhagra and Anwar Kamal Khan to the seats reserved in the senate for 'technocrats' and 'professionals' held that they do not qualify as a 'technocrat or professional as defined in the explanation to Article 5 of P.Os. Of 1977. To understand this controversy in its true perspective it is necessary to examine the A legislative
---
## Page 3
history in this regard. The Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution') contained the following provision regarding Senate:-- "59. (1) The Senate shall consist of sixty three members, of whom-- (a) fourteen shall be elected by the members of each Provincial Assembly; (b) five shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly; and (c) two shall be chosen from the Federal capital in such manner as the President may, by Order, prescribe. (2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote. (3) The Senate shall not be subject to dissolution but the term of office of its members shall be four years, half of them retiring every two years, except in the case of the members elected by the members from the Federally Administered Tribal Areas, of whom three shall retire after the expiration of the first two years and two shall retire after the expiration of the next two years: ' Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled." ' From the above provision in the Constitution, it is quite clear that originally there was no concept for election to the Senate against any reserved seat for Ulemas, technocrats' or other professional'. The Constitution was, however, held in abeyance on promulgation of Martial Law in the country on 5-7-1977. The Chief Martial Law Administrator on 28-7-1977 promulgated President's (Post Proclamation) Order 5 of 1977 Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (hereinafter to be referred as P.0.5). Article 1(2) of P.0.5 declared that it shall apply only in respect of the forthcoming elections to the Houses of Parliament and Provincial Assemblies. Article 3 of P.0.5 provided that Election to the two Houses of Parliament and the Provincial Assemblies shall be held in the month of October 1977 on the dates to be notified by the Election Commissioner under the Representation of the People Act or under the Senate (Election) Act, as the case may be. The provision relating to the election to 'the seats in the Senate contained in Article 5 of P.0.5 reads as follows:-- "5. The Senate. --(1) As provided in Article 59 of the Constitution.-- (a) the Senate shall consist of sixty three members, of whom-- (i) fourteen shall be elected by the members of each Provincial Assembly; (ii) five shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly; and (iii) two shall be chosen from the Federal Capital in such manner as the President may, by Order, prescribe; (b) election to fill seats in the Senate allocated to each Province shall be ' held in accordance with the system of Proportional representation by means of the single transferable vote; and (c) term of office of the members of the Senate shall be four years, half of them retiring every two years, except in the case of the members, elected by the members from the Federally Administered Tribal Areas, of whom three shall retire after the expiration of the first two years and two shall retire after the expiration of the next two years: ' Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled. (2) The members elected or chosen as members of the Senate shall be divided into two groups by drawing lots, the first group consisting of seven members from each province, three members from the Federally Administered Tribal Areas and one member from the Federal Capital and the second group consisting of seven members from each Province, two members from the said Areas and one member from the Federal Capital.
---
## Page 4
(3) The term of the office of the first group and of the second group shall respectively be two years and four years. (4) The term of office of persons elected or chosen to succeed the members of the Senate at the expiration of their respective terms shall be four years." ' The provision relating to Senate introduced through P.0.5 did not change the original provision in the Constitution relating to total number of seats reserved for Senate, distribution of these seats between provinces, Federally Administered Tribal Areas (FATA) and the Federal Capital territory the method of election though proportional representation by means of single transferable vote and the terms of the office of Senators. However, clause (2) of Article 5 of P.0.5 provided that the elected members of senate will be divided in two groups by drawing of lots. The first group would consist of 7 members from each province, three members of FATA and one member from Federal Capital territory. The Second group in the Senate in the like manner would consist of 7 members from each province, two members from FATA and one member from Federal Capital territory. The term of the first group was provided in Article 5(3) as two years while that of the second group as 4 years. It was further provided in Article 5(4) (ibid) that the terms of the office of person elected or chosen to succeed the members of Senate at the expiration of their respective terms should be four years. P.O 5 was amended from time to time by the following Presidential Orders between the period July 1977 to June 1985:-- {{TABLE}} "PRESIDENT'S (POST-PROCLAMATION) ORDER 6 of 1977 dated 31-7-1977 7 of 1977 dated 7-8-1977 8 of 1977 dated 31-8-1977 12 of 1977 dated 4-10-1977 President's Order 17 of 1978 dated 24-9-1978 21 of 1978 dated 19-11-1978 12 of 1979 dated 18-8-1979 15 of 1979 dated 19-9-1979 18 of 1979 dated 27-9-1979 20 of 1979 dated 8-10-1979 21 of 1979 dated 18-10-1979 8 of 1984 dated 27-10-1984 13 of 1984 dated 5-12-1984 14 of 1985 dated 2-3-1985 2 of 1985 dated 12-1-1985 3 of 1985 dated 12-1-1985 4 of 1985 dated 12-1-1985 7 of 1985 dated 17-1-1985 8 of 1985 dated 20-1-1985 9 of 1985 dated 20-1-1985 12 of 1985 dated 2-3-1985 16 of 1985 dated 6-3-1985 17 of 1985
---
## Page 5
dated 7-3-1985 18 of 1985 dated 17-3-1985 21 of 1985 dated 19-3-1985 22 of 1985 dated 19-3-1985 23 of 1985 dated 19-3-1985 27 of 1985 dated 29-6-1985" {{TABLE}} ' After the party-less election of 1985, the P.O 5 was amended through Ordinance I of 1986 which was later converted into an Act of Parliament by Act No, II of 1986.' ' It is not necessary to refer here all the amendments made in P.O 5 through the Presidential Orders mentioned above as all of them are not relevant for decision of controversy before us in these cases. We will, therefore, only refer to those amendments which have some bearing on the issues raised before us in the above appeals. ' P.0.5 provided that the general election in the country will be held in October 1977. Through P.O. 12 of 1977 the words "in the month of October 1977" in Article 3 of P.O. 5 were omitted with the effect that the general election in the country stood postponed for an indefinite period. Thereafter, only two more amendments were made in P.O. 5 in the year 1978 and 4 in the year 1979 through P.Os. 17 and 21 of 1978 and P.Os. 15, 18,20 and 21 of 1979. The amendments made in 1978 introduced the concept of separate electorate and fixed the number of Muslim and non-Muslim seats in the National and Provincial Assemblies besides reserving specific number of seats for women in the Assemblies and providing for the manner of their elections. The amendments of 1978 also fixed the minimum age of a voter at 21 years. The amendments made in P.O 5 in the year 1979 mainly related to qualifications and disqualifications of the members of Parliament. No, amendments in P.O. 5, thereafter, were made between the period from 9-10-1978 to 26-10-1984. P.O. 8 of 1984 which was enacted on 27-10-1984, omitted clause (2) of Article 1 of P.O 5 which provided that P.0.5 would apply only in respect of forthcoming election to the Houses of Parliament and Provincial Assemblies. The result of this amendment was that the restriction provided in Article 1(2) of P.O. 5 that the provision of P.O. 5 applied only to the forthcoming elections to the Houses of Parliament and the Provincial Assemblies stood removed. P.O. 5 was further amended through Presidential Orders No, 2, 3 and 4 of 1985 all issued on 12-1-1985. These Presidential Orders amended Articles 4, 7, 10 and 12 of P.0.5 besides substituting a new Schedule in P.O. 5 in place of 1st and 2nd Schedule. P.0.5 was again amended through P.O. 7 of 1985 enacted on 17-1-1985 which increased the disqualification period prescribed in Article 10(2) (b) (6) from 5 to 12 years and sub-paragraph (6-a) was omitted. P.Os. 8 and 9 of 1985 which were enacted on 20-1-1985 amended Article 11 and Articles 4 and 6 of P.O. 5 respectively. Through President's Order 14 of 1985, The Revival of the Constitution of 1973 Order 1985 (R.C.O.) Article 59 of the Constitution was amended and further amendment in Article 59 was made through Constitution (Eighth Amendment) Act, 1985 (Act No, XVIII of 1985). Article 59, in its amended form, now reads as follows:-- "59. (.1) The Senate shall consist of {eighty-seven} members, of whom--- (a) fourteen shall be elected by the members of each Provincial Assembly; (b) eight shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly; (c) three shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe; and
---
## Page 6
(d) five shall be elected by the members of each Provincial Assembly to represent Ulema, technocrats and other professionals. (2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of Proportional representation by means of the single transferable vote. (3) The Senate shall not be subject to dissolution but the term of its members, who shall retire as follows, shall be six years:-- (a) of the members referred to in paragraph (a) of clause (1), seven shall retire after the expiration of the first three years and seven shall retire after the expiration of the next three years; (b) of the members referred to in paragraph (b) of the aforesaid clause, four shall retire after the expiration of the first three years and four shall retire after the expiration of the next three years; (c) of the members referred to in paragraph (c) of the aforesaid clause, one shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years; and (d) of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the first three years and three shall retire after the expiration of the next three years: Provided that the term of office of a person elected to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled." On the same day, the R.C.O. Was enacted, P.O. 5 was further amended by P.O 12 of 1985 which inserted following Article 12-A after Article 12 in P.O. 5:-- "12-A. Bar against membership of a local council or Cantonment Board and a House or a Provincial Assembly at the same time. --If a member of a local council or Union Council constituted under any law relating to local Government or of a Cantonment Board constituted under the Cantonment Act. 1924 (II of 1924) is elected to a seat in a House or a Provincial Assembly, he shall, within a period of fifteeen days after the declaration of the result for such seat, resign his office of such members or such seat and if he does not so resign, such seat shall become vacant at the expiration of the said period." ' A few days after enactment of R.C.O., on 6th March, 1985, Articles 4, 5. 6, and 12-A of P.0.5 were further amended by P.O 16 of 1985. The amendments introduced in Article 5 of the P.O. 5 reads as follows:-- "3. Amendment of Article 5 P.(P.P) 0 No,5 of 1977.- - In the said order in Article 5 (I) in clause (1),-- (a) in paragraph (a),--- (i) for the word 'sixty three' the word 'eighty seven' shall be substituted; (ii) in sub-paragraph (ii) for the word 'five' the word 'eight' shall be substituted and the word 'and' at the end shall be omitted: (iii) in sub-paragraph (iii) for the word 'two' the word three shall be substituted and after the semi- colon at the end the word 'and' shall be added; and (iv) after sub-paragraph (iii) amended as aforesaid, the following new subparagraph shall be added, namely:- "(iv) five shall be elected by the members of each Provincial Assembly to represent Ulema, technocrats and other professionals: (b) for paragraph (c) the following shall be substituted, namely: (c) the term of office of the members of the Senate, who shall retire as follows, shall be six years:- (i) of the members referred to in sub-paragraphs (i) and (iv) of paragraph (a), six shall retire after the expiration of the first two years, six shall retire after the expiration of the next two years and seven shall retire after the expiration of the next two years: (ii) of the members referred to in sub-paragraph (ii), two shall retire after the expiration of the first two years and three shall retire after the expiration of every two years thereafter. And
---
## Page 7
(iii) of the members referred to in sub-paragraph (iii) one shall retire after the expiration of every two years: ' Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled." and (c) after clause (c), substituted as aforesaid, the following explanation shall he added, namely:-- "Explanation---in this clause.-- (a) 'Aalim' means a Muslim scholar with high qualifications in relighious education recognised by the University Grants Commission or having specialized knowledge of Tafseer, hadith and filth, to his credit and engaged for at least fifteen years in dissemination of these subjects either as an imam in a Jamia Mosque or as a teacher or researcher in an educational or research institution or as a practitioner in Islamic law; (b) 'technocrat' means a person of nationally or internationally recoginised professional competence with at least fifteeen years, experience and expertise at a high level for administering or managing an operational policy-making unit; and (c) Professional' means a person of distinction with nationally or internationally recognised professional qualifications and practical - experience in his specialization by adopting it as his principal calling. Vocation or employment." (2) after clause (i), amended as aforesaid, the following new clause shall be inserted, namely:- "(1-a) a casual vacancy in the office of a member referred to in subparagraph (iv) of paragraph (a) of clause (1) shall be filled for the remainder of the term of such member by the members of the Provincial Assembly by whom such member had been elected electing another person under the said sub-paragraph." (3) for clauses (2) and (3) and the following shall be substituted, namely:-- "(2) the members elected or chosen as members of the senate shall be divided into three groups by drawing lots, the first group consisting of six members from each province, two members from the Federally Administered Tribal Areas and one member from the federal capital, the second group consisting of six members from each province, three members from capital and the third group consisting of seven members from each province, three members from the Federally Administered Tribal Areas and one member from the Federal Capital," and (4) in clause (4) for the word 'four' the word 'six' shall be substituted." P.O. 17 of 1985 promulgated on 7th March, 1985 further amended Article 10 of P.O. 5 by adding following new clause (4) after clause (3):-- "(4) A person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a Provincial Assembly at the elections held under this order he has not been elected to such Assembly." ' Through P.O. 18 of 1985 enacted on 17-3-1985, the following new sub-paragraph (10) was added after sub-paragraph (9) in Article 10 of P.O. 5:- "(10) he is the husband or she is the wife, or a dependent son or daughter, of a person who holds any office of profit in the service of Pakistan other than an office specified in sub-paragraph (9)." ' On 19-3-1985, three P.Os. Nos. 21, 22 and 23 of 1985 were issued. P.O 21 omitted Articles 20,21,22 and 23 from P.O.S. P.0.22 further amended Article 10 of P.O. 5 by adding a new clause (5) after clause (4). A new validation Provision was introduced which provided that nomination paper of a person for a senate seat filed under P.O. 5 or Act LI of 1975, by a person either as a proposer or seconder. Who had not taken the oath as a member of a Provincial Assembly will not be rendered invalid or will not be called in question in any court or authority on that ground. P.O. 23 omitted sub paragraph (10) of paragraph (b) of clause (2) of Article 10, inserted a new Article 11-A after Article 11 and omitted Article 3 which was inserted by P.O 18 of 1985, from P.0.5.
---
## Page 8
' P.O. 27 of 1985 promulgated on 29-6-1985 omitted Article 12-A which was added after Article 12 in P.0.5, by P.0.12 of 1985. By Ordinance I of 1986 promulgated on 14-5-1986 sub-paragraph (7-A) of paragraph (b) of clause (2) of Article 10 in P.O. 5 was omitted. Ordinance I of 1986 was later passed by the Parliament as Act II of 1986. The provisions of the Constitution as amended by R.C.O. Were enforced from 10th March, 1985 except Articles 6, 8 to 28 (both inclusive) clauses (2) and 2(A) of Article 101, Article, 199, 213 to 216 (both inclusive) and Article 270-A. The proclamation of 5th July, 1977 was revoked on 30th December, 1985 and from that date the remaining provisions of the Constitution, which were not covered under the notification dated 10-3-1985 also came into effect. Therefore, as and from 30-12-1985 the whole of the Constitution is enforced. ' A bench of three learned Judges of this Court consisting of Ajmal Mian, C.J (as he then was) Munawar Ahmad Mirza and Mamoon Kazi, JJ., in Civil Appeals Nos. 532 of 1997 and 589 of 1997 (Muhammad Rafiq Ahmed v. Zia Shahid, 1999 SCM R 573, decided on 23-12-1998), while…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.