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Petitioner: Sheikh RAFIQUE AHMED VS Respondent: ZIA SHAHID and another
Court Name: Supreme Court of Pakistan Judge(s): Mamoon Kazi, Ajmal Mian, Munawar Ahmed Mirza Title: Sheikh RAFIQUE AHMED vs ZIA SHAHID and another Case No.:Civil Appeals Nos. 532 and 589 of 1997Petition No.2 of 1994C.A. No.532 of
JUDGMENT
Reported As: 1999 SCMR 573 Result: Appeal accepted Judgment JUDGMENT MUNAWAR AHMED MIRZA, J.---Civil Appeal 532 of 1997 under section 48(3) of 'The Senate (Election) Act, 1975 (No.LI of 1975) has been filed by Sheikh Rafique Ahmed against judgment, dated 28-4-1997 pass in Election Petition No.2 of 1994 by the Election Tribunal, wherein election of appellant Sheikh Rafique Ahmed regarding reserved seats for Ulema, Technocrats and Professionals from Punjab in Senate was set aside declaring it void; with directions to 'Election Commissionfor holding fresh election in accordance with law. Whereas connected Civil Appeal No.589 of 1997 was instituted by Zia Shahid (being petitioners before Election Tribunal) challenging same judgment praying for declaration of having been elected as only candidate who had obtained next highest votes during the election in question. 2. Facts culminating in filing of above two appeals briefly mentioned are, that under The Constitution of Islamic Republic of Pakistan (hereinafter referred as 'The Constitution') Majlis-e- Shoora (Parliament) comprises of President and two Houses to be known as National Assembly and Senate. By virtue of Article 59 of 'The Constitutioninitially Senate consisted of 63 seats to be elected by members of respective Provincial Assemblies. The number of seatswas increased to 87 through President's Order 14 of 1985 (Revival of Constitution Order, 1985) (PLD 1985 Central Statutes 456). However, for purposes of present case, amendments incorporated in Article 59 being relevant are reproduced below:-- "1. In clause (I),--- (a) for the word "sixty-three" the word "eighty-seven" shall be substituted;
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(b) in paragraph (b),-- (i) for the word "five" the word "eight" shall be substituted; and (ii) the word "and" at the end shall be omitted; (c) in paragraph (c), (i) for the word "two" the word "three" shall be substituted; and (ii) for the full-stop at the end the semi-colon and word "and" shall be substituted; and , (d) after paragraph (c), amended as aforesaid, the following new paragraph shall be added, namely-- "(d) five shall be elected by the members of each Provincial Assembly to represent ulema, technocrats and other professionals." 2. For clause (3) the following shall be substituted, namely:-- "(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 paragraphs (a) and (d) of clause (1), 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; (b) of the members referred to in paragraph (b), two shall retire after the expiration of the first two years and three shall retire after the expiration of every two years thereafter; and (c) of the members referred to in paragraph (c), one shall retire after expiration of every two years; Provided that the terms of office of a person elected or choosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled." 3. After clause (3), substituted as aforesaid, the following new clause shall be added, namely:-- (4) A casual vacancy in the office of a member referred to in paragraph (d) 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 paragraph." The complexion of the above Article, thus, changed and modified reads:-- "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]; (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 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 seven 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; (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; and
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Provided that the term of office of a person elected to fill a casual vacancy shall be the unexplained term of the member whose vacancy he has filled." 3. Articles 62 and 63 of The Constitutionwere also amended by R.C.O., 1985 (supra) and exhaustive details about qualifications and disqualifications for membership of Majlis-e-Shoora (Parliament) were described. Besides the qualifications OR disqualifications of Members of Parliament and Provincial Assemblies are also mentioned in Chapter X of the Representation of the People Act, 1976 (Act LXXXV of 1976). Similarly Articles 62(i) and 63(1)(p) also mandated that qualifications or disqualifications of person seeking election or being choosen as member of the Parliament or Provincial Assemblies could also be regulated by any other law for the time being in force. 4. In the instant case by way of rotation two seats reserved for 'Technocrats, Ulema and Professionalsfor each Province were falling vacant in terms of Article 59(3)(d) of 'The Constitutionon 21-3-1994. The Election Commissioner to fill said vacancies had issued Notification on 2nd March, 1994 for holding election in respect of above two seats of the Senate. Three persons, namely, (i) Dr. Javed Iqbal, (ii) appellant Zia Shahid, and (iii) appellant Sheikh Rafique Ahmed filed nomination papers. No objection regarding qualification of any candidate was raised before Returning Officer at the time of filing nomination papers or subsequently till election was held. Result of the poling conducted on 12th March, 1994 indicates that above three candidates acquired following number of votes:-- (i) Sheikh Rafique Ahmed, appellant In Civil Appeal No.532 of 1997:134 Votes (ii) Dr. Javed Iqbal, respondent No.2 In both the appeals:98 Votes. (iii) Zia Shahid, appellant in Civil Appeal No.589 of 1997:3 Votes. 5. In the light of above result, appellant, Sheikh Rafiq Ahmed and Dr. Javed Iqbal were declared to have been successfully elected against two reserved seats of Punjab Province in Senate. On 16-5- 1994 appellant Zia Shahid filed 'Election PetitionNo.2 of 1994 before Pakistan Election Tribunal, challenging that appellant Sheikh Rafique Ahmed inter alia other grounds did not fulfill necessary qualification for being elected as 'Professional'. Details including his disqualification were also enumerated in the petition. Appellant Sheikh Rafique Ahmed filed comprehensive written statement on 12-6-1995 repudiating assertions made in the Election Petition. It was averred that, he is a Law Graduate from University of Punjab, joined profession of law in year 1946, enrolled as Advocate High Court towards 1949 and became Advocate Supreme Court during 1958; thus, having long standing appeared in several matters before superior Courts of the country. He gained popularity amongst fellow Advocates, got elected Secretary of Lahore High Court Bar Association and District Bar Association. He reaped benefit of his professional career and acquired prominence by virtue of his professional background got elected in the Provincial Assembly and became Speaker of Punjab besides serving the nation in different capacities. 6. Both the appellants namely, Zia Shahid and Sheikh Rafiq Ahmed appeared during the Court proceedings before 'Election Tribunaland gave statements on oath to substantiate their respective stands. Several documents were also produced by Sheikh Rafique Ahmed for supporing his status of being 'Professional'. 7. Learned Election Tribunal by means of judgment, dated 28-4-1997 accepted the Election petition. As a consequence whereof the election of appellant Sheikh Rafiq Ahmed in respect of seat reserved for Ulema/Technocrats/Professionals in the Senate of Pakistan was declared to be void thereby directing the 'Election Commissionto hold fresh election for the seat thus falling vacant.
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8. Sheikh Rafique Ahmed has challenged said decision through Civil Appeal No.532 of 1997, whereas Zia Shahid filed Civil Appeal No.589 of 1997 against same judgment for being declared successful on the ground that he was the only candidate, who obtained next highest votes. Since these matters involve determination of identical points of law and facts therefore, are being decided through common judgment. 9. Mr. Aitzaz Ahsan, Advocate Supreme Court, has mainly raised following contentions, questioning the validity of impugned judgment:-- (i) Preisdent's Order 5 (P.0.5 of 1977) is one time law, which was applicable only to the Elections held in year 1985. The Election Tribunal has misconstrued legal proposition by failing to examine its applicability in true perspective. The conclusions drawn in the impugned judgment, thus, suffer from legal infirmity. (ii) The qualifications or disqualifications for elections of the Senate could be regulated either by provisions of 'The Constitutionor in the manner prescribed by Acts of Parliament and not by Presidential Order. (iii) Without prejudice, appellant Sheikh Rafique Ahmed fulfilled required qualification for a 'Professionalspecified in P.O. 5 of 1977 as amended by P.O. 16 of 1985. (iv) The principle of law and real essence or purpose for enacting P.O. 5 reflected from perusal of various provisions that it was one time legislation intended to bring back normal democratic system. Explanation introduced through P.0.16 of 1985 was thus merely restricted to single occasion and could not be extended to subsequent Elections. 10. Mr. Azam Sultan Suherwardy, Advocate Supreme Court, appearing for appellant Zia Shahid emphatically argued that:- (i) P.O. 5 of 1977 was fully protected by virtue of Article 270-A of 'The Constitulionbeing Existing Law, therefore, qualifications OR disqualifications for contesting elections concerning reserved seats in Senate has to be judged on the criteria expressly contained in the aforesaid legislative instrument. (ii) Appellate Sheikh Rafique Ahmed was not actively in profession, at the time of his nomination, besides, he remained throughout a casual practitioner never acquired any stature in the profession nor contributed significantly to the process of interpretation which may display his recognition by virtue of professional acumen. No judgment could be cited which may reflect marked assistance rendered by him in determining new point of law or resolving intricate legal questions. (iii) Prima facie details furnished by Sheikh Rafique Ahmed do not reasonably qualify him for election against reserved seats in the capacity of 'Professionalas rightly held by the Tribunal through impugned judgment. (iv) After acceptance of Election Petition and holding appellant Sheikh Rafique Ahmed as ineligible for contesting election, it was obligatory for the Election Tribunal to have declared appellant Zia Shahid as duly elected being third remaining contestant. 11. We have carefully considered all aspects in the light of material on record and relevant law. Firstly, we may notice that President's (Post-Proclamation) Order 5 of 1977 Houses of Parliament and Provincial Assemblies Election Order (hereinafter referred as P.0.5 of 1977) (PLD 1977 Central Statutes 346) was promulgated on 28-7-1977 when 'The Constitutionwas held in abeyance and Martial Law was imposed in the country. This legislative instrument provided an endeavour to restore Democracy whereby people may exercise authority and perform functions of the State through choosen representatives. Clause 1(2) of 'P.O. 5 of 1977', mentions that "it shall apply only in respect of forthcoming election of the Houses of Parliament and Provincial assemblies" (underlining is for emphasis). However, by means of President's Order 14 of 1985 (R.C.O.), dated 2-3- 1985 number of seats in the National Assembly, Senate and Provincial Assemblies appearing in Article, 4, 5 and 6 of 'P.O. 5 of 1977were increased according to amendment in the Constitution,
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besides, qualification and disqualification of Members for Parliament being elected or choosen to National Assembly OR Provincial Assemblies was drastically modified and changed. It may be seen that bar against double membership already exists in Article 223 of 'The Constitution'. Similarly powers of the Commission to declare polls void are contained in section 103-AA of the Representation of the People Act, 1976 (Act LXXXV of 1976). Election disputes and procedure for regulating election petitions appears in Chapter VII of above Act LXXXV of 1976. The method of election or reserved seats of Senate referred in Article 19 is separately regulated by the Senate (Election) Act, 1975 and Senate (Election) Rules, 1975, as amended. Article 20 refers to the procedure for holding joint sitting of the Parliament (Mailis-e-Shoora) which expressly mentions that after the Election, referred in Article 18 and 19 of P.O. 5 of 1977, President may summon the Houses for joint sitting to meet at such time and place as he thinks fit and may also prorogue the same. In sub- clause (2) it is specifically mentioned that President shall preside the meeting of the two Houses in joint sitting and after Presidential address may call upon Chief Martial Law Administrator to address joint sitting (underling is for emphasis). The procedure for appointment of Leader of the House in the National Assembly, Chairman and Deputy Chairman of Senate, Chief Ministers of the Provinces, Speakers and Speakers of the National Assembly and Provincial Assemblies contained in said Presidential Order clearly refers to single term action because thereafter obviously provisions of 'The Constitutionshall have overriding effect. Article 23 of 'P.O. 5 of 1977mentions that after elections referred in Articles 21 and 22 "Chief Martial Law Administrator will sign the Proclamation of revoking Proclamation of 5th July, 1977 for withdrawing Martial Law". Article 24 specifies that Elections held under P.O. 5 of 1977 to the Houses and Provincial Assemblies and to the offices of Speakers, Deputy Speakers, Prime Minister, Chief Ministers and Chairman shall be deemed to have been under 'The Constitutionand shall have effect accordingly. This Presidential Order also contains Oath to be taken by every member of Parliament and Provincial Assemblies, as provided under Article 7 in accordance with Form specified in First and Second Schedules. 12. It is pertinent to mention here that President's Order No.16 of 1985 (PLD 1985 Central Statutes 573) was promulgated on 6-3-1985 containing changes in the respective articles which corresponded with details mentioned in R.C.O. 14 of 1985 (PLD 1985 Central Statutes 456). An explanation was also added in Article 5 relating to Senate defining the terms (a) Aalim, (b) Technocrat and (c) Professional; which are to the following effect:-- "Explanation.- --In this clause,-- (a) 'aalimmeans a Muslim scholar with high qualifications in religious education recognized by the University Grants Commission or having specialized knowledge of Tafseer, Hadith and Fiqh, 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) 'technocratmeans a person of nationally or internationally recognized professional competence with at least fifteen yearsexperience and expertise at a high level for administering or managing an operational or policy-making unit; and (c) 'professionalmeans a person of distinicition with nationally or internationally recognized professional qualifications and practical experience at a high level in a specialized area of knowledge who has been practising in his specialization by adopting it as his principal calling vocation or employment." On 7th March, 1985 'P.O. 5 of 1977was further amended by the President Order 17 of 1985 (PLD 1985 Central Statutes 575) whereby another disqualification was introduced in its Article 10 and clause 10(4) to the following effect was added:-- "(4) A person shall be disqualified from being elected or choosen and from being, a member of the Senate if, having been a candidate for election of the National Assembly or a Provincial Assembly
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at the elections held under this Order he has not been elected to such Assembly." 13. Having carefully gone through various provisions of Preisdent's Order 5 of 1977 as amended from time to time it would be necessary to properly analyze real purpose and true object for its promulgation. Obviously after clamping Martial Law, and keeping 'The Constitutionin abeyance General Elections were to be held within ninety (90) days and C.M.L.A. Fixed the date, for 18th October, 1977. Therefore, Preamble provides the intention of law-giver about restoring the democracy by transferring functions of running the Government to choosen representatives of the people. Article 1(2) specifically mentions that above legislative instrument shall apply "only" in respect of "for the coming" Election to the Houses of Parliament and Provincial Assemblies. The words "only" and "forthcoming" appearing in the above provision are extremely significant. It is quite manifest that, Transfer of Power needed one time Action whereby probable complexities in transformation of Martial Law Rule into restoration of democracy, could be adequately resolved to avert possibility of chaos. It is important to note that holding of joint session and calling upon Chief Martial Law Administrator for addressing joint sitting factually clinches the controversy, because the Office of Chief Martial Law Administrator was necessarily to vanish after revival of The Constitutionand Transfer of Power. There could not be two opinions; that after finalization of complete process including address of C.M.L.A. To joint sitting of two Houses of Parliament and revocation of Martial Law as contemplated by Articles 20 to 24 of President's Order No.5 of 1977. 'The Constitutionas amended would stand revived. The Special Oath required to be taken by members elected during Elections held under P.O. 5 of 1977 was prescribed under its First and Second Schedules which certainly cannot be repeated because thereafter, Member of National Assembly or the Senate shall take oath under Article 65 of 'The Constitutionand members of the Provincial Assemblies under Article 127 read with Article 65. Therefore, when entire President's (Post- Proclamation) Order 5 of 1977 is scru tinized it yields towards unrebuttable conclusions that same was meant for "only" for one time action to cater "forthcoming" election held on first occasion during Martial Law whereby authority to choose representative for carrying out functions of the State was to be restored by causing resultant withdrawal of Martial Law. 14. Learned counsel for appellant Zia Shahid vehemently contended that provisions of Article 270-A provided complete protection to P.O. 5 of 1977 being an existing law, therefore, said legal instrument alongwith its amendment have binding effect. We may notice that every provision of P.O. 5 individually or collectively converges towards the proposition that said legal instrument/statute has fixed object circumscribed by actual tenure of the law, which on the happening of specified event, would become practically ineffective and rendered infructuous. Therefore, said legal instrument by no stretch could be extended beyond its life which automatically expired after convening joint sitting referred above and withdrawal of Proclamation. At this stage we may refer to observations in case Shujaat Hussain Qureshi v. Raees Ahmed Qureshi PLD 1988 SC 118 at page 123 whereby validity of amendment made"in P.O. 5 of 1977 through P.O. 17, dated 7th March, 1985 was challenged. The operative portion reads:-- "In the present case it is an admitted fact that the appellant had contested the general election 'to the National Assembly held on 28th March, 1985 and lost the same. Sub-Article (4) of Article 10 was incorporated in P.O. 5 of 1977 on 7th March, 1985, thus it is evident that the appellant had become ineligible to contest election/bye-election to a general seat of the Senate from the Province of Punjab held on 27th January, 1986. As he was ineligible to participate in a contest for a general seat to the .Senate, then even if he was elected, he was correctly held to be disqualified to continue as Senator by the Election Tribunal. We may observe that the submission of the appellant's counsel that the above interpretation would debar the appellant from contesting an election to the Senate for ever is untenable. It is only candidates who contested elections to the NationalAssembly or the Provincial Assembly under P.O.
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5 of 1977 and were unsuccessful who stood debarred. The next general elections are admittedly to be held under the provisions of the Constitution, when Article 10(4) of P.O. 5 of 1977 will no longer be in the field." 15. It is an undisputed position that General Election during continuance of Martial Law in February, 1985 were ,'Non-Party Based'. Apparently in order to ensure election of people having considerable excellence and enjoyed reasonable prominence towards specified fields were intended to contest against special. Reserved seats of Senate. Therefore, amendment was brought about by means of P.O. 16 of 1985 which provided guidelines for selecting more knowledgeable people amongst Ulema, Technocrats OR Professionals; so that men of eminence should make Senate effectively workable. The above-referred amendment was serious effort for adopting necessary measures to make aforesaid 'forthcomingelections more viable and acceptable to people so that after Transfer of Power the Democratic Institution should be able to appropriately manage functions of the State and Legislative Affairs through men of wisdom. It can also lead to a presumption that after the restoration of normal democratic system political parties would be expected to make selection amongst people of sufficiently high calibre in their respective fields so that, they could render useful advice in resolving multifarious State problems. 16. Looking to the second limb of arguments, it is well-settled that when a legislative instrument has been enacted for specified object, fixed period, or has been made contingent upon happening of future event, then on the expirty of said period, accomplishment of specified object or happening of contingency or future event, said legislative instrument would be rendered nugatory and automatically ceased to be operative. Thus, protection clause, obviously can neither extend, whether impliedly or expressly, the prescribed tenure nor can it enlarge its life span of any legal instrument. For elucidation it may be seen that Article 212-B of 'The Constitutionwas introduced by means of amendment through Act No.XIV of 1991, dated 28-7-1991 (PLD 1991 Central Statutes 461) regrading establishment of Special Courts for the trial of heinous offences, for limited period of three years. Therefore, on the expirty of stipulated time, it stood repealed, and ceased to be operative. Therefore, except conscious steps by amending "The Constitution" or re-enactment of law after fulfilment of object or expiry of period, same cannot be stretched forward or extended by any protection beyond specified limit or event: Therefore, invoking protection clause, life/tenure can always constitutes a material and important factor, which cannot be lightly ignored or overlooked. The provisions of P.O. 5 of 1977 when visualized in the actual…
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