' SYED SHABBAR RAZA RIZVI J.---The learned counsel for the petitioner contended that the petitioner was qualified to contest election to the Senate seat reserved for "Technocrat Quota" for Federal Capital Territory, Islamabad. According to him, the petitioner holds the following qualifications:-- (i). The petitioner has been in the legal profession for the last 35 years.
(ii). The petitioner is B.A., LL.B., from the Punjab University, Lahore and University of Karachi, respectively. He joined several training courses including one at the International Development Law Institute, R.O.M.E.
(iii). The petitioner remained associated with a reputed law firm (Khan and Paracha) from 1988 to 2003).
(iv). Advised major international companies dealing in petroleum and energy sectors who made investments in the country worth of billion of rupees; petitioner is a member of International Development Law Organization (IDLO) at R.O.M.E., Italy.
(v) Participated in courses titled as "Legal Prevention and Judicial Control of Corruption" at IDLO, Rome in November, 1999; and
(vi) The petitioner has been working as a treasurer in Pakistan of IDLO Association.
2. According to the learned counsel, considering the qualifications of the petitioner, Pakistan People's Party parliamentarians (P.P.P.P) awarded him party ticket to contest the Senate Election.
However, respondent No,2, rejected petitioner's nomination papers on 14-2-2006 on the ground that the petitioner failed to fulfill the qualifications to qualify as a "Technocrat", therefore, not a "Technocrat" as defined under Article 2 (d) of the Conduct of General Elections Order; 2002.
3. That the petitioner filed an appeal before the learned Member Election Commission of Pakistan, Islamabad (i,e, respondent No,3). The appeal of the petitioner was dismissed on 20-2-2006. The petitioner called in question the orders dated 14-2-2006 and 20-2-2006 passed by the learned Returning Officer and the learned Member Election Commission of Pakistan respectively.
4. The learned counsel for the petitioners contended that petitioner had been deprived of his fundamental right (political right) to contest election to the Senate. The learned counsel gave details of his qualifications, as noted above, as grounds of the present writ petition to canvass and argue that petitioner was fully qualified to contest the said election.
5. Respondent No,1 appeared personally and argued in support of his written statement. He raised preliminary objection that present writ petition was not maintainable. According to him, the election of respondent No,1 was an election under the Constitution, therefore, Article 225 was attracted which expressly provides that no election to a House shall be called in question except by an election petition presented to a Tribunal. He submitted on merits that petitioner was not qualified, therefore, his nomination papers were rightly rejected by the Returning Officer and likewise the order of the learned Election Commission of Pakistan was also consistent with the law on the subject. He also submitted that Respondent No,1 had already been declared successful and result of the election was not challenged in the present writ petition. In. Addition to the above arguments, respondent No,1 contended that the petitioner was not a lawyer of known standing or international/national repute. He elaborated that petitioner's application for enrollment as an Advocate of Supreme Court was deferred by the Supreme Court Enrollment Committee vide its order dated 12-8-2004 on the ground that he had no reported cases to his credit. Respondent No,1 also categorically asserted that there was nothing to the credit of the petitioner to show any achievement of the national or international recognition.
6. We have heard learned counsel for the petitioner and respondent No,1, in person, who is also a leading lawyer of the country. We have considered their arguments with due care and consideration. Article 225 of the Constitution reads as under:-- ' Article 225. Election dispute.-No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of (Majlis-e-Shoora (Parliament)).
7. Election of Senate is held under Article 59 of the Constitution to be read with Article 2(d) of the Conduct of General Elections Order, 2002. The Chief Election Commissioner under Article 219 of the Constitution is charged with the duty of organizing and conducting election to the Senate.
Therefore, in every sense and manner the election, subject-matter of present writ petition, was an election under the Constitution. In other words, election of the Senate is election under the Constitution. The natural corollary of the above is that bar contained in Article 225 of the Constitution is fully attracted. The language of Article 225 is "prohibitory" in nature and expressly worded. It reads that no election to a House or a Provincial Assembly shall be called in question except by an election petition. Therefore, the present writ petition is prohibited and not maintainable.
8. To qualify as a "Technocrat", an Advocate may not have mastered in a particular subject of law, however, he should be, at least an Advocate of the Supreme Court of Pakistan, and should have some cases reported in law journals to his credit. His record may show that he has been holding any representative office i,e, Member of Pakistan Bar Council, President of High Court Bar Association or the Supreme Court Bar Association etc. In case of the petitioner, he is neither an Advocate of the Supreme Court nor he has held any representative office of the legal fraternity. In this context, for a persuasive purpose a reference may be made to Maulvi Haji Abdullah and another vs. Javed Jabbar, Hassan A. Sheikh (Advocate) and others (NLR 1989 TD 138). In the above election petition, it was held: "The fact that the respondent is an Advocate of the Supreme Court, has been Member of Sindh Bar Council and Member National Assembly coupled with the other assignments mentioned in Columns Nos.9(b) and 13 of the Nomination Form, do portray that he is a person of distinction." In addition to the above, we agree with the reasons recorded by the learned Member Election Commission of Pakistan in para. 5 of the impugned judgment, to hold that the petitioner is not qualified to contest election on the seat of "Technocrat" as contemplated under Article 59 of the Constitution to be read with Article 2(d) of the Conduct of General Elections Order, 2002. Para-5 of order of the learned Member, Pakistan Election Commission is reproduced as below:-- "5. Having heard the parties and on seeking guidance from the ratio settled in the judgments cited at the Bar from both sides, I am of the view that the appellant does not come anywhere near the standard and excellence expected of a "Technocrat" as defined in the above law. Following are my reasons:--
(1) It is an admitted fact that the claim of the appellant to excellence and achievements at the National and International level pertain only to the field of law. In that field, none of his contributions detailed in his appeal and those addressed at the bar has impressed me. His academic qualification in law does not make him a man of distinction. The attendance of a two weeks' course at Italy organized by a little known Organization like IDLO may not have added anything to the kind of practice he is engaged in. Also being a Treasurer of Alumni Association of that Organization means nothing as far the professional competence of a lawyer in Pakistan is concerned. He has not so far been admitted to the rolls of Hon'ble Supreme Court of Pakistan as an Advocate and has no reported judgment from the High Court or any other Tribunal of higher jurisdiction. He has never been elected as a representative of the lawyer community to any learned body of a Bar Council or a Bar Association at national, provincial or even at the district level. His income from the profession in the last three years as mentioned in the nomination forms was paltry on which income tax was paid respectively at Rs,9248, Rs,6900 and Rs,35,200. He has no book, article or a mentionable treatise on law. Even it the list of seventy-five cases in which he claims to have appeared before the High Court is accepted as correct, that fact alone will not make him a person who can be identified as an eminent lawyer by mere reference to his name.
(2) In the case of Mian Raza Rabbani v. Returning Officer, Province of Sindh and others (supra), the Chief Election Commissioner at the relevant time addressed himself to the question if the appellant was a person of distinction, possessed nationally or internationally recognized professional qualifications or practical experience at a high level in a specialized area of knowledge he has been practicing as his principal calling, vocation or employment. The conclusion was in the negative as the appellant was found lacking in meeting these standards. The present appellant falls short of a number of distinctions that Mian Raza Rabbani enjoyed at the relevant time in politics and other fields. In Re: Dr. Syed Farnoq Hassan and others v. Mumtaz Ahmad Khan and others (Supra), the Hon'ble Supreme Court found that in profession of journalism, to be on the Editorial Board, to be co-Editor of a magazine and to be Press Attache in a foreign mission was by itself no indication of a man having secured distinction and eminence in the field. In re: Nazir Ahmad v. Returning Officer (supra), the appellant was as an Advocate of the High Court and had five reported judgments to his credit. However, it was held that his academic degree in law and practice at the bar as an ordinary lawyer did not prove that he was a "professional" as defined by Article 5 of the House of Parliament and Provincial Assemblies (Elections) Order (5 of 1977). The other case relied upon by the appellant and reported as Muhammad Saeed v. Chief Election Commissioner (supra) is answered by the two judgments cited by the respondent.
(3). The claim of the appellant that he has been in receipt of copies of different articles sent to him by some foreign Organizations, which he further sent to different Hon'ble Judges of the superior Courts, can hardly be described as a contribution to the field of law or an achievement to be worthy of serious consideration.
(4). The claim of the appellant that he has been rendering legal advice to the aforesaid high profile commercial clients is not established on record. Even if that be so, again rendering of such advice to some important commercial clients by itself does not answer the definition of a "Technocrat'."
9. Before we part with this judgment, it may be pointed out that Article 59 of the Constitution has been amended at least twice since 1973. It was first time amended by the Presidential Order No,14 of 1985. Before said amendment, each Provincial Assembly was required to elect 14 Senators, but by virtue of the amendment, apart from other additions, members of the Provincial Assembly were also required to elect Senators to represent Ulema, Technocrats and other Professionals. As a result of the said amendment, it is a constitutional obligation of the Election Commission of Pakistan to ensure that this special category (Technocrats) is represented in the Senate, therefore, it is also constitutional obligation of the Election Commission of Pakistan and Courts to ensure that only qualified persons are elected to fulfil the mandate of the Constitution as enshrined in Article 59 of the Constitution.
10. Consequent to the discussion and also for reasons stated above, we hold.
(i) that this writ petition is not maintainable and barred by provisions of Article 225 of the Constitution; and
(ii) that the petitioner does not qualify as a "Technocatat" as contemplated under Article 59 of the Constitution to be read with Article 2 (d) of the Conduct of General Election Order, 2002.