' MUHAMMAD NAWAZ ABBASI, J.---This judgment proposes to dispose of constitutional petitions bearing Nos. 58, 59, 61, 62, 63 and 67 of 2007 which have been filed by the petitioners under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, (hereinafter referred to as the Constitution), challenging the eligibility of General Pervez Musharraf, Chief of the Army Staff and the President of Pakistan (respondent herein) to be a candidate to contest the forthcoming election for the office of President for the second term on various grounds. After preliminary hearing of the Constitutional Petition No, 59 of 2007 this Court vide order dated 6-9-2007 issued notices to the Attorney General for Pakistan in terms of Order XXVII-A, C.P.C. Read with Order XXIX Rule 1 of the Supreme Court Rules, 1980 and also appointed M/s. S. M. Zafar, Senior Advocate Supreme Court, Mr. Abdul Hafeez Pirzada Senior Advocate Supreme Court, and Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, to assist the Court as amicus curiae. All these connected petitions involving common questions of law and facts have been set down for regular hearing to consider the questions formulated in Constitutional Petition No, 59 of 2007 as under:-- "This Constitutional Petition has been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as "the Constitution"].
2. Learned counsel appearing for petitioner formulated following points for consideration by this Court : --
(i) The President to Hold Another Office Act, 2004 [hereinafter referred to as "the impugned Act"], on the face of it, is discriminatory. It discriminates amongst the persons, occupying the similar offices, subsequent incumbents and all other Army/Military personnel.
(ii) The Impugned Act does not exempt the office of the Chief of Army Staff, which is permanent office. It exempts the present incumbent of the office of the President, none else.
(iii) In the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) the law laid down in the earlier judgment in Qazi Hussain Ahmed v. Pervez Musharraf, Chief Executive (PLD 2002 SC 853) has been reiterated on the point that only the qualification shall apply and disqualifications enumerated in Article 63 of the Constitution shall not apply. The above referred two judgments are per incurium of the law declared by this Court in Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), as such these judgments are liable to be revisited to the extent of the finding/observation for determining whether disqualifications contained in Article 63 of the Constitution apply to the President of Pakistan or not? The above referred two judgments have erroneously followed the rule laid down in Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541), Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414) and Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 461).
(iv) Article 244 of the Constitution is applicable with full force on the forthcoming election of the President.
(v) The present incumbent of the office of the President is ineligible even to file his nomination papers for the next term, even without uniform.
(vi) The amendments in Article 41(7), (8) and (9) of the Constitution were one time specific and were based on a covenant between the political parties, thus this impugned Act, entire amendments and related issues have to be examined, keeping in view such consensus/agreement, leading to such amendments. Hence, the impugned Act was framed and enacted in breach of the national consensus for post takeover extra-constitutional management.
But for this consensus and covenant, neither there would have been the 17th Amendment nor the incumbent President in uniform.
(vii) The entire issue relates to the Fundamental Rights of the people of Pakistan, enshrined in the Constitution, which are being denied on account of and for the sake of one person
3. Learned Attorney General for Pakistan appearing for respondent No, 1 tried to repel the above arguments of the learned counsel for the petitioner by formulating the following points: -
(a) This petition, on the face of it, is not maintainable under Article 184(3) of the Constitution and has been instituted/filed with mala fide.
(b) In any case the relief, so far as the forthcoming election to the office of the President is concerned, is premature and does not raise a live issue at present and is based on speculations, conjectures and surmises and is without any basis.
(c) Jurisdiction of this Court under Article 184(3) of the Constitution is discretionary and should not be exercised, as it would amount to disrupting the Constitution process of election for the office of President and the general elections.
(d) The relief should not be granted as instant petition has also been filed after undue delay and suffers from laches and also for the reason that impugned Act has remained in force for a period of about three years. In any case, instant petition have been filed after about two years of the judgment of this Hon'ble Court in the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719).
(e) The impugned Act is constitutionally legal and valid and does not suffer from any discrimination and is not violative of Article 25 of the Constitution.
(0 In any case the declaration of the office of Chief of Army Staff, being not an office of profit in service of Pakistan, by the impugned Act, is based upon intelligible differentia and on sound reasons, including the Constitutional history of the occupation of the office, both of the President and the Chief of Army Staff by respondent No, 2 Gen. Pervez Musharraf.
(g) Article 63(1)(d) of the Constitution itself permits the Legislature to frame a law, exempting the holder of any office and exercise of legislative powers by the Parliament, pursuant to this Constitutional provision, is not liable to or in the alternative, may not be interfered with by this Court.
(h) The Constitution itself protects the holder of the office of the President and also the Chief of Army Staff, therefore, the incumbent President has a right to remain and occupy the office of Chief of Army Staff.
(i) Article 63 of the Constitution has no applicability to the election of the office of the President, as has been correctly held by this Court in Qazi Hussain Ahmed v. Pervez Musharraf, Chief Executive (PLD 2002 SC 853).
(j) Article 244 of the Constitution has no applicability so far as the election to the office of the President is concerned as it has already been held by this Court in various cases.
(k) Although, for the points noted above, the question whether or not Gen. Pervez Musharraf is qualified to contest the next election of the President, does not arise in the present case. However, in the alternative, the plea is that he is fully qualified and competent to contest the election to the office of the President with or without uniform i,e, while holding the office of the Chief of Army Staff or without it, for the next term.
(1) So called agreement/arrangements between the political party or parties is extraneous to the validity of the impugned Act and this question cannot be gone into by this Court and can also not form basis for declaring a law invalid or unconstitutional.
(m) Article 17 of the Constitution relied upon by the petitioner has no relevancy nor Fundamental Rights of the people of Pakistan are in issue, in any manner, whatsoever, in the present case.
(n) Constitutional amendment or a law framed for an individual is legal, valid and constitutional and has been upheld in various judgments by this Court including Fauji Foundation v. Shamimar Rehman (PLD 1983 SC 457).
' Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court, appearing for respondent No 2, while opposing the propositions put forward by the learned counsel for the petitioner and endorsing the points put forward by Malik Muhammad .Qayyum for the Federation, has urged as follows: -
(1) There can be no estoppel against a statute.
(2) Reliance has been placed by the learned counsel for the petitioner on the so called agreement between the political parties, therefore, the petition suffers from non-joinder of the said parties.
(3) As the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) is under review, therefore, hearing of this petition is liable to be stayed till the said decision.
5. In view of our order dated 5th September, 2007, following statement has been filed on behalf of respondent No, 2:- "That term of Office of the President expires on 15th of November 2007.
2. It may be mentioned that under Article 44(1) of the Constitution of Pakistan, it is provided that the President shall, notwithstanding the expiration of his terms, continue to hold office until his successor enters upon his office."
6. Learned counsel appearing for respondents Nos. 1 & 2, have stated that they do not want to file any written reply to this petition, as per the instructions, which have been conveyed to them.
7. The points raised on behalf of both the sides, particularly, the statement filed by respondent No, 2 give rise to number of questions, pertaining to the interpretation of the Constitution, therefore, it is mandatory to seek assistance of learned Attorney General for Pakistan, as such, notice, as required in terms of Order XXVIIA, C.P.C. And Order XXIX, Rule 1 of the Supreme Court Rules, 1980 is issued to him.
8. As important questions, relating to interpretation of the Constitution and law are involved, therefore, we consider it appropriate to appoint M/s. S.M. Zafar, Senior Advocate Supreme Court, Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Ch. Aitzaz Ahsan, Senior Advocate Supreme Court to appear and assist the Court as amicus curiae.
9. Since it is an important matter, as it is evident from the contentions, raised on behalf of the parties, we direct that let this case be fixed for hearing on 17th September 2007".
2. Messrs Muhammad Akram Sheikh, Senior Advocate Supreme Court, Hamid Khan, Senior Advocate Supreme Court, A.K. Dogar, Senior Advocate Supreme Court, learned counsel have represented the petitioners in Constitutional Petitions Nos. 59/2007, 58 & 61/2007, 68/2007 respectively and Malik Muhammad Qayyum, Attorney General for'Pakistan, Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, assisted by Raja Muhammad Ibrahim Satti, Advocate Supreme Court appeared on behalf of the respondents whereas Mr. S.M. Zafar, Senior Advocate Supreme Court, Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court, and Mr. Aitzaz Ahsan, Senior Advocate Supreme Court, have assisted the Court as amicus curiae
3. The learned counsel for the petitioners having focused their arguments on the points noted hereinabove, have submitted that notwithstanding the 17th Amendment in the Constitution or any other law for the time being in force, General Pervez Musharraf, the present incumbent of the office of President is not qualified to be elected or chosen as member of National Assembly under Article 41(2) as he is lacking the requisite qualification for a candidate to context the forthcoming election of President of Pakistan. It was argued that in addition to the qualification provided under Article 41(2) of the Constitution that a candidate in the election for the Office of President should be a Muslim of not less than 45 years of age and should also possess the qualifications mentioned in Article 62 of the Constitution to be elected or chosen as a member of Parliament and must not be suffering from any disqualification contained in Article 63 of the Constitution.
' Learned counsel while challenging the validity of the Act-VII of 2004 namely "President to Hold Another Office Act, 2004" promulgated under Article 63(1)(d) of the Constitution on 30th November 2004 which was enforced on 31-12-2004, has contended that the enactment of the Act was mala fide and beyond the scope of the legislative competence of the Parliament in the light of the judgment of this Court in Zafar Ali Shah v. General Pervez Musharraf, Chief Executive (PLD 2000 SC 869) and being ultra vires to the Constitution is not a valid law, to remove the disqualification incurred by General Pervez Musharraf (respondent) under Article 63(1)(d)(k) and (o) of the Constitution and further the respondent while occupying the office of Chief of Army Staff (COAS) in violation of the Army Regulations Vol I (Rules) 1998, read with Article 25 of the Constitution as well as his oath as Member of Armed Forces under Article 244 read with 3rd Schedule of the Constitution, is not qualified for election of President in terms of Article 41 (2) of the Constitution. It was further argued that the judgments rendered by this Court in the cases of Qazi Hussain Ahmed v. General Pervez Musharraf, Chief Executive (PLD 2002 SC 853) and Pakistan Lawyers Forum v.
Federation of Pakistan (PLD 2005 SC 719), wherein it was held that Article 63 is not applicable to a candidate in the election of the President for the purpose of determination of his eligibility under Article 41(2) of the Constitution, are contrary to the law laid down by this Court in Pir Sabir Shah v.
Shad Muhammad Khan (PLD 1995 SC 66) and consequently, these judgments are not only per incurium to the law already laid down by this Court on the subject but are also in conflict to the true spirit of Article 41(2) of the Constitution.
4. Malik Muhammad Qayyum, learned Attorney General for Pakistan and Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court, counsel for the President have opposed these petitions on the grounds, firstly that no question relating to the enforcement of any of the fundamental rights conferred by Part II, Chapter I of the Constitution (Articles 8 to 28) is involved in these petitions to invoke the original jurisdiction of this Court under Article 184(3) of the Constitution and secondly these petitions have also no substance on merits in view of the provision of Article 41(7)
(b) read with Article 62 of the Constitution and Act VII of 2004 as well as the law laid down by this Court in the cases referred above.
5. The main thrust of the arguments of the learned counsel for the petitioners was that General Pervez Musharraf respondent herein is not qualified to contest the election for the office of President for the next term, whereas the learned Attorney General and learned counsel for the respondents have emphasized that no doubt the election of the President is a matter of public importance but no question with reference to the enforcement of any of the fundamental rights guaranteed under the Constitution is involved in the matter to maintain these petitions under Article 184 (3) of the Constitution.
6. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court, counsel for the petitioner in Constitutional Petition No,59 of 2007, has contended that view taken in the cases namely Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863), Malik Hamid Sarfraz v.
Federation of Pakistan (PLD 1979 SC 991), Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), Mian Muhammad Shahbaz Sharif v. Ch. Muhammad Altaf Hussain, (PLD 1995 Lahore 541), Justice (R.)
Muhammad Rafique Tarrar v. Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner of Pakistan and 6 others (PLD 1998 Lah 461), Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719), Qazi Hussain Ahmed, Ameer-e-Jamat-e-Islami and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853) that the eligibility of a person to contest the election of President is determined only on the basis of qualification mentioned in Article 62 of Constitution and the disqualification referred in Article 63 of the Constitution is not applicable to the election of President, is contrary to the spirit of Article 41(2) of the Constitution and are also per incurium to the law laid down by this Court in Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66). The learned counsel added that Articles 62 and 63 of the Constitution are to be read together for the purpose of determination of the qualification of a person to be elected or chosen as Member of the Parliament and in the same manner, the qualification of person who intends to contest the election for the office of President is to be determined.
7. Learned counsel submitted that Article 62 of the Constitution contains pre-election qualification and disqualification of a candidate whereas the disqualification mentioned in Article 63 of the Constitution is applicable to the candidate as well as Member and the expression `qualified to be elected as member' used in Article 41(2) of the Constitution is referable to both qualification and disqualification mentioned in Articles 62 and 63 of the Constitution for determining the eligibility of a candidate for the election of President. The learned counsel placing reliance on Zafar Ali Shah v.
Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), Sardar Farooq Khan Leghari v.
Federation of Pakistan (PLD 1999 SC 57) and Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) submitted that the view taken in the cases of Qazi Hussain Ahmed and Pakistan Lawyers Forum, supra would require reconsideration to rectify the mistake of law.
8. The learned counsel on the strength of Articles 17 and 25 of the Constitution contended that the questions raised in these petitions would relate to the political rights of the people of Pakistan as President being Head of State is symbol of unity and this is fundamental right of the citizens of Pakistan to have a non-controversial person as Head of State who is acceptable to every one in the best interest of sovereignty and integrity of Pakistan and that, the election of the President is not only a matter of public importance but also involves enforcement of the fundamental right of political justice in terms of Article 17 of the Constitution, therefore, the verdict given by this Court in Qazi Hussain Ahmed case and in Pakistan Lawyers Forum's case, supra, that disqualification listed in Article 63 of the Constitution on the basis of an earlier judgment rendered by this Court in Aftab Shahban Mirani v. President of Pakistan and others (1998 SCMR 1863) by virtue of which the judgments of the Lahore High Court in the cases of Justice (R) Muhammad Rafique Tarrar v. Justice Mukhtar Ahmed Junejo (PLD 1998 Lah 461) and Mian Muhammad Shahbaz Sharif v. Ch. Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others (PLD 1995 Lah 541) on the same subject were upheld, is not in accordance with the Constitutional mandate. The learned counsel submitted that the true interpretation of law on the subject would suggest that Articles 62 and 63 must be read together with Article 41(2) of the Constitution to determine the eligibility of a person for the election of President and consequently, the view taken in the judgments referred above is not only contrary to the law laid down by this Court in Pir Sabir Shah's case supra, but is also not in consonance with the spirit of Article 41(2) of the Constitution.
9. The second limb of the argument of learned counsel in respect of eligibility of General Pervez Musharraf is that he after relinquishing the charge of the office of Chief Executive under Article 41(7)
(b) of the Constitution has almost completed full term of office of President and prior to the assumption of office of President under the President Succession Order, 2001, he also completed left over term of an elected President (Mr. Justice (R) Muhammad Rafique Tarrar) and thus having already completed two terms of office of President as provided under Article 44(2) of the Constitution, is not eligible to contest election for the third term. The learned counsel added that General Pervez Musharraf having not relinquished the office of COAS in terms of proviso to Article 41(7)(b) of the Constitution inserted by virtue of 17th Amendment, has rendered himself disqualified under Article 63(1)(d)(k) and (o) of the Constitution to be elected or chosen as Member of Parliament to hold the office of President and consequently, notwithstanding the Article 270AA of the Constitution and the 17th amendment, the respondent while holding the office of COAS cannot hold the office of President and is also not qualified to contest the election for the office of President for the next term. The learned counsel thus argued that a candidate in the election for the office of President must not only fulfil the qualification to be elected as Member of the Parliament under Article 62 of the Constitution but he should also be not suffering from any disqualification to be elected or chosen as Member of Parliament under Article 63 of the Constitution or under any other provision of the Constitution and law.
10. The next contention of the learned counsel is that respondent is occupying the office of COAS in deviation to the law and the Constitution depriving the others from their legitimate right to hold the said office in their own right and with reference to the cases namely Government of Balochistan v.
Azizullah Memon (PLD 1993 SC 341), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), Inamur Rehman v. Federation of Pakistan and another (1992 SCMR 563), Kanta Kathuria v. Manak Chand Surana [1970] 2 SCR 835) and Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541), has submitted that respondent has rendered himself disqualified to contest the election for the office of President.
11. Mr. Hamid Khan, Senior Advocate Supreme Court, learned counsel in the Constitutional Petitions Nos. 58 & 61/2007 has submitted that General Pervez Musharraf obtained commission in the Pakistan Army as Second Lieutenant in 1964 and having been served for a period more than 36 years, he was promoted as General and then was appointed as COAS on 7-10-1998. The learned counsel without taking any exception, submitted that respondent having completed the normal terms of office of COAS on 6th October 2001 and attaining the retiring age of 60 years on 11-8-2003 could not hold the office of COAS beyond these dates and his continuation in the said office was illegal and unconstitutional, therefore, notwithstanding the provision of Article 41(7) of the Constitution and Act VII of 2004, he having incurred disqualification referred in Article 63(1)(d) and also suffering from disqualification mentioned in clauses (k) and (o) of Article 63(1) of the Constitution is not eligible to contest the election of President. The learned counsel added that General Pervez Musharraf in violation of his oath as Member of Armed Forces under Article 244 read with 3rd Schedule of the Constitution and Pakistan Army Regulations Vol I, (Rules) 1998, indulged in political activities and having not relinquished the office of COAS in consequence to the 17th amendment in the Constitution, has incurred a patent disqualification to hold the office of President.
12. Learned counsel next argued that Act VII of 2004 being violative of Articles 2-A, 8, and 25 of the Constitution is not a valid law to have any legal effect and in the light of law laid down in Amirunnisa Begum v. Mehboob Begum (AIR 1953 SC 91), Abrar Hassan v. Government of Sindh (PLD 1976 SC 315), General Pervez Musharraf cannot hold two constitutional offices at the same time.
13. Last point argued by the learned counsel was that notwithstanding the provision of Article 41(3) and (4) of the Constitution, the present National and Provincial Assemblies do not constitute a valid electoral college for the election of President under Article 41(3) of the Constitution as the terms of the National and Provincial Assemblies under Articles 52 and 107 of the Constitution respectively, are also expiring with the term of President in office.
14. Mr. A.K. Dogar, Senior Advocate Supreme Court, learned counsel in Constitutional Petition No, 68/2007 with reference to the events of military Take-over and Proclamation of Emergency in October, 1999, promulgation of Provisional Constitutional Order and pronouncement of judgment in Zafar Ali Shah case in 2000, the Referendum Order, 2002, Legal Framework Order, 2002, the holding of General Elections Order, 2002, and taking of Oath of Office of President, the Revival of Constitution Order 2002, passing of 17th Amendment and promulgation of Act VII of 2004 contended that the continuation of General Pervez Musharraf in the office of COAS after 31-12-2004 was unconstitutional and promulgation of Act VII of 2004 under Article 63(1)(d) being ultra vires to the Constitution was not a valid law to remove his disability to hold the office of COAS together with the office of President. Learned counsel submitted that the expression 'declared' occurring in Article 63(1)(d) means the laws already in existence whereas Act VII of 2004 was subsequently enacted only for the benefit of respondent to grant him exemption from disqualification under Article 63(1)
(d) of the Constitution for one term which was in utter disregard to the legislative competence of the Parliament and was also against the law laid down by this Court in Mahmood Khan Achakzai v.
Federation of Pakistan (PLD 997 SC 426), Asma Jillani v. Government of Punjab and another (PLD 1972 SC 139). The learned counsel emphasized that this is the duty of the Court to decide the question of law arising in a case even if it was not raised by the parties, therefore, notwithstanding the judgment of this Court in Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719), it is still open for this Court to examine the validity of 17th amendment and Act VII of 2004 by virtue of which an encroachment was made on the political right of the people in terms of Article 17 of the Constitution to elect a person of their choice as Head of State. Learned counsel submitted that in the light of law laid down by this Court in Zafar Ali Shah v. Perve2 Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), the Parliament in its legislative competence, could not enact a law to perpetuate the Military Rule.
15. The next contention of the learned counsel is that notwithstanding the protection provided to the respondent under Article 41(7)(b) to hold the office of COAS with the office of President, the occupation of office of COAS beyond the scope of proviso added therewith by 17th Amendment in the Constitution, was violative of Articles 63, 41 and Article 43 of the Constitution, therefore, the disqualification of respondent to contest election, was floating on the surface and this Court may not hesitate to examine the question relating to his eligibility for the election of President in its original jurisdiction under Article 184(3) of the Constitution at any stage and placing reliance on Al- Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) proceeded to add that the President having involved himself in political activities and patronizing a political party, has rendered himself liable to be removed under Article 47 of the Constitution and thus not a fit person to be elected as President for the next term.
16. The learned counsel forcefully argued that Articles 62 and 63 cannot be separated and read in isolation rather both these Articles must be read together with Article 41(2) of the Constitution for the purpose of determination of the eligibility of a person to contest the election for the office of President and placing reliance on Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) contended that the disqualification of a person under the Constitution cannot be ignored on technical grounds.
17. The last point pressed by the learned counsel was that present incumbent of the office of President is not a righteous person as he having breached oath of his office, has proved him a dishonest person and that he having acted in the manner prejudicial to the integrity and independence of the judiciary and also ridiculing the Armed Forces of Pakistan for his personal gain has rendered himself disqualified to hold any public office.
18. Malik Muhammad Qayyum, learned Attorney General for Pakistan without disputing the Public Importance of the election of President, has seriously questioned the maintainability of these petitions under Article 184(3) of the Constitution on the ground that the question as to whether a person is qualified for the election of President or not, has no nexus with any of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 28) and unless there is a question relating to the enforcement of any of these fundamental rights, the original jurisdiction of this Court under Article 184(3) of the Constitution, cannot be invoked. The learned Attorney General, urged that the right to contest the election for a public office subject to the law and Constitution is different to the right to challenge the candidature of a person to restrain him from participating in the election and notwithstanding the public importance of the election of- Head of State, the question relating to the qualification and disqualification of a person to participate in such election as a candidate is not a fundamental right enforceable under Article 184(3) of the Constitution. The learned Attorney General submitted that the qualification and disqualification is a matter which relates to the eligibility of a person to contest the election and this is settled law that all questions relating to the eligibility and candidature of a person must be decided by the concerned forum at the appropriate stage in accordance with law. The objection that the respondent was suffering from certain disqualifications mentioned in Article 63 of the Constitution can be conveniently raised before the proper forum provided under the law, therefore, the direct petition under Article 184(3) of the Constitution before this Court in the matter is not maintainable.
19. The learned Attorney General forcefully argued that in view of the law laid down in Mahendra Lal v. State of U.P. (AIR 1963 SC 1019), the question whether a judgment is per incurium is not a question relating to the enforcement of any fundamental rights mentioned in Articles 8 to 28 of the Constitution and that the expression per incurium means a wrong decision or ignorance of law but a judgment of this Court is not per incurium merely for the reason that it contains a different view on a subject to that of an earlier judgment and thus so long a judgment is in the field, it is binding in terms of Article 189 of the Constitution. This is settled proposition of law that if a person is found qualified to be elected as member of Parliament on a particular date, his qualification cannot be subsequently converted into disqualification by stretching the law against his candidature with retrospective effect. This is also settled proposition that subject to law, a person has right to contest the election and has also right to raise objection before the appropriate forum that his opponent is not qualified to contest the election but these rights do not fall under Part II, Chapter 1 of the Constitution, therefore, the jurisdiction of this Court under Article 184(3) of the Constitution cannot be enlarged to such matters and the aggrieved person may avail other appropriate remedies provided under .The law.
20. Learned Attorney General with reference to the cases of Qazi Hussain Ahmed, Ameer-e-Jamat- e-Islami and others v. Pervez Musharraf, Chief Executive, and others (PLD 2002 SC 853), Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) and Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863) argued that the opinion rendered by this Court in these judgments relating to the interpretation of Article 41 (2) of the Constitution, was quite different to the proposition involved in Pir Sabir Shah's case, supra, and placing reliance on All Pakistan Newspaper Society v. Federation of Pakistan (PLD 2004 SC 600), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), Syed Zulfiqar Mehdi and another v. Pakistan International Air Lines through M.D. Karachi and others (1998 SCMR 793) and Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66) argued that these petitions are not maintainable under Article 184(3) of the Constitution.
21. In the wake of arguments on merits learned Attorney General submitted that Article 41(2) of the Constitution read with Article 62 of the Constitution is self-contained in respect of the qualification and disqualification of a person for the election of President, therefore, the disqualification mentioned in Article 63 is not as such applicable to the election of President to determine the eligibility of a person under Article 41(2) of the Constitution. In support of the proposition, he has placed reliance on the cases of Aftab Shahban Mirani v. Chief Election Commissioner and others (1998 SCMR 1863), Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) and Qazi Hussain Ahmed, Ameer-e-Jamat-e-Islami and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853).
22. The learned Attorney General next contended that the validity of Act VII of 2004 as well as the question relating to the application of Article 63 has been elaborately dealt with by this Court in Lawyers Forum's case supra and in the light thereof, the respondent is not suffering from any disqualification under the Constitution to contest the election of President. Be that as it may, all questions relating to the eligibility of the candidate for the election of President are to be raised before Chief Election Commissioner, a forum provided under the Constitution and with reference to Kanta Kathuria v. Manak Chand (AIR 1970 SC 694), N. Ibomcha Singh v. Chandramani Singh (AIR 1977 SC 682), Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854), Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457)
L.N. Mishra Institute of E.D. And Social Change v. State of Behar (AIR 1988 SC 1136), Qazi Hussain Ahmed, Ameer-e-Jamat-e-Islami and others v. Pervez Musharraf, Chief Executive, and others (PLD 2002 SC 853) forcefully argued that these petitions are neither maintainable nor have any substance to succeed on merits.
23. Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court having adopted the arguments of learned Attorney General, has submitted that no question relating to the enforcement of any of the fundamental rights is involved in the present petitions and different interpretation in two judgments on a question of law is not as such a matter relating to the enforcement of a fundamental right to invoke the jurisdiction of this Court under Article 184(3) of the Constitution. Learned counsel has submitted that since a review petition is pending before this Court in the case of Lawyers Forum whereas judgment rendered in Qazi Hussain Ahmed's case has attained finality, therefore, the precise question relating to the application of Article 63 of the Constitution to the election of President cannot be agitated in the present petitions at this stage.
Learned counsel with reference to Babu Parasu Kaikadi v. Babu (AIR 2004 SC 754) submitted that notwithstanding the divergent opinion, the law laid down by this Court unless is changed, has binding effect under Article 189 of the Constitution and cannot be ignored.
24. Mr. S.M. Zafar, learned Senior Advocate Supreme Court appearing as amicus curiae, has argued that the Presidential election is an essential step to complete transitional process of transfer of powers from military rule to civil authorities and this process must not be obstructed. Learned counsel pointed out that Act VII of 2004 was validated by this Court in Pakistan Lawyers Forum v.
Federation of Pakistan (PLD 2005 SC 719), in consequence to which the President continued in the office while holding the office of COAS, therefore, the validity of this Act was no more questionable and further in view of statement made by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court on behalf of General Pervez Musharraf that if he is elected as President for the second term, he will relinquish the office of COAS before taking oath of office of President, these petitions have borne fruit to be disposed of accordingly.
25. The learned counsel argued that the bar of holding another office by the President in the service of Pakistan under Article 43 of the Constitution was not applicable to the present incumbent of office of President under Article 41(7)(b) of the Constitution and this Court may direct the respondent to relinquish the office of COAS before the election so that the process of transfer of powers is completed in accordance with the Constitution. Learned counsel argued that in consequence to the direction given by this Court in Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) the elections were held and assemblies were constituted.
The Legal Framework Order (LFO) was incorporated in 17th Amendment in the Constitution and a number of other steps were taken and acts done for restoration of democracy and in the light of certain passages referred from his book, "Dialogue" has submitted that the issues raised in these petitions are almost only of academic nature at this stage.
26. Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court appearing as amicus curiae, having endorsed the views of Mr. S.M. Zafar submitted that transition of power must not be interrupted and that the objection relating to the candidature of Gen. Pervez Musharraf for the election of President, in view of the undertaking given on his behalf in the Court by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court for relinquishing the office of COAS, these petitions need not to proceed any further and distinguishing the judgment in Pir Sabir Shah's case cited before the Court regarding the application of Article 63 of the Constitution to the election of President, has submitted that judgments in Qazi Hussain Ahmed's case and Lawyers Forum's case are not per incurium. He added that by virtue of proviso to Article 41(7)(b) and Act VII of 2004 the President may not hold the office of COAS beyond the date of expiry of his term and in any case the Chief Election Commissioner is the proper forum to determine the eligibility of the candidates for the election of President in terms of Article 41(2) of the Constitution. Learned counsel submitted that constitutional aberration in Pakistan, is a normal practice, therefore, it is better to have worst kind of democracy to that of an ideal dictatorship and tracing out the Constitutional history of Pakistan submitted that this Court will not allow the obstruction in the transition of powers on the basis of technical objections.
27. Mr. Aitzaz Ahsan, Senior Advocate Supreme Court also appearing as amicus curiae, has contended that under the Constitution no person in service of Pakistan including a Member of Armed Forces can contest the election for the office of President (or for any other elective office) and pointed out the possible situations emerging in the present case.
(i) In consequence to 17th Amendment in the Constitution, Gen. Pervez Musharraf, can retain the office of President as well as the office of COAS maximum till the expiry of his present term of office of President.
(ii) In view of the statement made by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court on behalf of General Pervez Musharraf that he will relinquish the office of COAS before taking oath of office of President for the next term, he has conceded his disqualification and therefore, neither he can hold office of COAS after a particular date nor he is qualified for election of President for the next term.
(iii) In view of the provisions of Article 63(1)(d)(k) and (o) of the Constitution, the essential question requiring determination is whether General Pervez Musharraf while holding the office of COAS is eligible in terms of Article 41(2) read with Article 44(2) of the Constitution to contest the election of the office of President and in the light of theory of separation of powers under the Constitution a Member of Armed Forces can occupy an elective office and indulge in politics.
28. Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court, has argued that there is a Constitutional and legal fire wall around the office of the President but in consequence to the 17th Amendment in the Constitution a deviation has been made to enable the President to hold another office in complete departure to the concept of the democracy and Parliament system of Government.
29. Learned counsel contended that under the provisions of Articles 41 and 62 read with Article 63 of the Constitution a person in service of Pakistan is disqualified to contest the election for the office of President and this Constitutional disqualification cannot be removed through subordinate legislation therefore, notwithstanding the enforcement of Act VII of 2004 General Pervez Musharraf is not qualified to contest the election of President. Learned counsel submitted that Articles 62 and 63 of the Constitution being interlinked, the eligibility of a person cannot be determined only on the basis of qualification mentioned in Article 62 of the Constitution rather he must not be suffering from any disqualification mentioned in Article 63 of the Constitution and added that by virtue of his oath under Article 244 read with 3rd Schedule of Constitution, General Pervez Musharraf even otherwise is not qualified to contest election for the office of President. Learned counsel with reference to the certain provisions of the Constitution submitted that distinction being made between qualification and disqualification is beyond the scope of law as well as logic and placing reliance on the case of Sabir Shah supra, Dr. Zakar Hussain's case (AIR 1968 SC 908) and Shahbaz Sharif v. Altaf Hussain (PLD 1995 Lahore 541) argued that qualification and disqualification can not be separated for the purpose of determination of the eligibility of a person to contest the election.
There is thus a fallacy in the idea that disqualification mentioned in Article 63 of the Constitution is not applicable to the election of the President despite the fact that candidate must be qualified to be elected as Member of Parliament. Learned counsel thus emphasized that the proposition raised herein requires examination for rational interpretation of the relevant provision of the Constitution.
30. After hearing the learned counsel for the parties and learned amicus curiae at quite some length and perused the case law on the subject cited by them at the bar in support of the contentions raised in these petitions, we at the first instance in the light of concept of original jurisdiction of the Supreme Court under the Constitution and the law laid down by this Court, consider it proper and necessary to examine the question relating to the maintainability of these petitions under Article 184(3) of the Constitution which provides as under:- "184 (1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
Explanation.--In this clause, "Governments" means the Federal Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause, (1), the Supreme Court shall pronounce declaratory judgments only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
31. There are two essential conditions for invoking the jurisdiction of Supreme Court of Pakistan under Article 184(3) of the Constitution. The first condition is that subject matter of the petition under this Article must be of public importance and second condition is that it must relate to the enforcement of any of the fundamental rights conferred by Part-II Chapter-1 of the Constitution.
We, therefore, in the light of law laid down by this Court on the subject, would like to examine the question whether the present petitions qualify the above test to entertain the same under Article 184(3) of the Constitution.
32. This Court in Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632) interpreted the expression "public importance" as under:-- ' it is quite clear that whether a particular case involved the element of "public importance" is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by, a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in. Manzoor Ellahi's case, supra, by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals."
33. In Zulfiqar Mehdi v. Pakistan International airlines Corporation (1998 SCMR 793), the expression "public importance" was discussed in the following manner :- "8. In order to confer jurisdiction on this Court to entertain a petition under Article 184 (3) of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly, that the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution (see Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; and Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632). The expression 'public importance' was interpreted in the case of Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66) as follows:- "Now, what is meant by a question of public importance. The term 'public' is invariably employed in contradistinction to the terms private or individual and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit v. Secretary for India-in-Council (ILR 39 Bom 279) while construing the words 'public purpose' such a phrase, 'whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned'. This definition appears to me to be equally applicable to the phrase 'public importance'.
' The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must, obviously raise a question which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case may be of no particular consequence. (Emphasis provided)
34. This Court in Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) examined the scope of Article 184(3) of the Constitution with reference to the question of public importance and enforcement of fundamental rights as under: - "3. In order to appreciate the above controversy, it may be advantageous to quote above clause
(3) of Article 184 of the Constitution, which reads as follows.-- "184(3).--Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
' A perusal of the above-quoted clause indicates that without prejudice the provisions of Article, 199 of the Constitution, which confers a Constitutional jurisdiction on the High Courts, the Supreme Court has been empowered to make an order of the nature mentioned in the above Article 199 provided the following two conditions are fulfilled:--
(i) a question of public importance is involved;
(ii) with reference to the enforcement of any of the Fundamental Rights guaranteed by Chapter 1, Part II of the Constitution, i,e, Articles 8 to 28."
' It was further held that:- "Article 184(3) of the Constitution of Pakistan pertains to original jurisdiction of the Supreme Court and its object is to ensure the enforcement of fundamental rights referred to therein. This provision is an edifice of democratic way of life and manifestation of responsibility casts on this Court as a protector and guardian of the Constitution. The jurisdiction conferred by it is fairly wide and the Court can make an order of the nature envisaged by Article 199, in a case where a question of public importance, with reference to enforcement of any fundamental right conferred by Chapter 1 of Part II of the Constitution is involved. Article 184(3) is remedial in character and is conditioned by three prerequisites, namely---
(i) There is a question of public importance.
(ii) Such a question involves enforcement of fundamental right, and
(iii) The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution."
"3. First, we may understand the nature of Article 184(3). This provision confers power on the Supreme Court to consider questions of public importance which are referable to the enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in Chapter 1 of Part II.
This power is without prejudice to the provisions of Article 199 which confer similar power with certain restrictions on the High Court. The power conferred depends upon two questions; one, that the case sought to be heard involves question of public importance and two, the question of public importance relates to the enforcement of Fundamental Rights. It is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights. This provision, confers a further safety and security to the fundamental rights conferred and guaranteed by the Constitution. This shows the importance which Fundamental Rights have in the scheme of the Constitution. They cannot be curtailed or abridged and any provision of law or action taken which violates Fundamental Rights conferred by the Constitution shall be void. The nature of jurisdiction and the relief which can be granted under this Article is much wider than Article 199. It confers a power to make an order of the nature mentioned in Article 199. The word 'nature' is not restrictive in meaning but extends the jurisdiction to pass an order which may not be strictly in conformity with Article 199 but it may have the same colour and the same scheme without any restrictions imposed under it. Article 184 is an effective weapon provided to Secure and guarantee the fundamental rights. It can be exercised where the Fundamental Right exists and a breach has been committed or is threatened. The attributes of Article 199 of being an aggrieved person or of having an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article 199 can be modified and also consequential reliefs can be granted which may ensure effective protection and implementation of the Fundamental Rights. Even disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed questions of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. Primarily, the questions involved are decided on admitted or prima facie established facts which can be determined by filing affidavits. Evidence in support of allegations can be taken orally in very exceptional cases where the breach is of a very serious nature affecting large section of the country and is of great general importance." (Emphasis provided)
35. In Syed Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), this Court having made comparison of Article 184(3) of the Constitution with Article 199 of the Constitution, observed as under:- "3. The above petitions have been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. The above provision reads as follows:- "(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
' A perusal of the above-quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled:-
(i) The case involves a question of public importance; and
(ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter 1 of Part II of the Constitution.
4. It may further be noticed that if the above two conditions are met, the above provision of the Constitution confers power on the Supreme Court to make an order of the nature mentioned in above Article 199 of the Constitution. It may be pertinent to point out that the scope of Article 199, which confers jurisdiction on the High Courts, is much wider than the jurisdiction conferred on the Supreme Court under the above-quoted provision of the Constitution inasmuch as a High Court not only can enforce a Fundamental Right under clause (2) of the above Article, but can also pass an appropriate order in the matters covered by sub-clauses (a), (b) of clause (1) of Article 199 of the Constitution, which provide as follows:- "199.-41) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office. " (Emphasis provided).
5. A High Court, while passing an appropriate order for the enforcement of Fundamental Rights or under the above sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution, is not required to go into the question, whether the case involves a question of public importance and, secondly, under the above sub-clauses (a) and (b) of clause (1) of Article 199, it is not necessary that the impugned action must be relatable to the enforcement of Fundamental Rights."
36. In Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) the provisions of Articles 184(3) and 199 of the Constitution were interpreted in the following manner:-- "From the above discussion it is quite clear that the use of the expression 'without prejudice to the provisions of Article 199' in the opening part of Article 184(3) merely indicated that the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of public importance relating to enforcement of fundamental rights guaranteed under Chapter 1 of Part II of the Constitution. The language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction by this Court under Article 184(3) of the Constitution is not controlled by the provisions of Article 199 of the Constitution. I am, therefore, unable to agree with the contention of the learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of power by this Court under the latter mentioned Article of Constitution is subject to limitation mentioned in Article 199 ibid. The jurisdiction of this Court under Article 184(3) of the Constitution is not affected in any manner either by the provisions of section 133 of the Act or by the conditions contained in Article 199(3) of the Constitution. The jurisdiction of this Court in a case under Article 184(3) ox the Constitution arises on existence of two conditions mentioned in this Article. Firstly, that the Court considers that the matter brought before it involves a question of public importance, and secondly, that it relates to enforcement of any of the Fundamental Rights guaranteed under Chapter 1, Part II of the Constitution. Apart from these two jurisdictional requirements, no other consideration are relevant for exercise of power by this Court under Article 184(3) of the Constitution." (Emphasis provided)
37. In case of Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Article 184(3) of the Constitution was discussed as under:-- "Article 184(3) of the Constitution empowers Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental Rights takes place by the operation of the law itself. In this context what would be relevant would be the language of the provisions of the impugned Act itself. It will then not be a question of the Court merely granting a declaration as to the validity or invalidity of law in the abstract. An enactment may immediately on its coming into force take away or abridge the Fundamental Rights of a person by its very terms and without any further overt act being done.
In such a case the infringement of the Fundamental Right is complete co instanti the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy. To say that a person, whose Fundamental Right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of Supreme Court for the enforcement of his right, will be to deny him the benefit of a salutary constitutional remedy which is itself his Fundamental Right. The infractions alleged cannot be regarded as seeking a declaration in the air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent questions."
38. Abdul Kadir Sheikh, J., as he then was, in Benazir Bhutto's case supra, observed as under: - "it is evident from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental. Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situations. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is the 'remedy' that makes the right real. It is often said that without 'remedy' there is no right. It is for this reason that Constitution- makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan. Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait-jacket formula was prescribed for the enforcement of the Rights. The obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid formula or strait-jacket formula prescribed for enforcement of the Rights would be self-defeating. The language of Article 184(3) is "open ended", and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons."
39. There is no cavil to the principle that original jurisdiction of this Court under Article 184 (3) of the Constitution cannot be exercised in a matter brought before it unless it is of public importance involving the enforcement of fundamental rights conferred by Part-II Chapter 1 of the Constitution (Articles 8 to 28) and in absence of any of the above condition, this Court is not supposed to entertain a petition under Article 184(3) of the Constitution. The object of Article 184(3) of the Constitution is the enforcement of the fundamental rights referred therein and no question, other than relating to the enforcement of a fundamental right, can be brought before this Court for determination in its original jurisdiction and an aggrieved person may avail other remedies open to him under the law. This Court will not entertain a petition under Article 184(3) if infringement of any of the fundamental rights conferred by Part II, Chapter 1 of the Constitution is not involved as the remedy under this Article is only for the enforcement of fundamental rights. The validity of any law or a provision of Statute if is challenged on the ground other than being in contravention of fundamental rights, the Supreme Court would not entertain such challenge in the proceedings under Article 184(3) of the Constitution, even if the law is found in contravention of some provisions of the Constitution. The rule is that Supreme Court will not interfere under this Article unless it is satisfied that infringement of the right being complained is the fundamental right and there is a breach of such right. The constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution also cannot be invoked for the correctness of a judgment of the Court in which a question of law was decided unless it is established that in consequence to the judgment of this Court, a fundamental right falling in Part II Chapter 1 of the Constitution has been violated. The Supreme Court in deed has power to rectify its own mistake but the provision of Article 184(3) of the Constitution is invokeable only in the matter of public importance relating to the enforcement of fundamental rights. The question relating to the determination of the legislative competence or vires of a particular enactment can only be gone into in the jurisdiction under Article 184(3) of the Constitution if a case is made out for interference of this Court by establishing that the law enacted was beyond the competence of the legislature which was not covered by the legislative list and also has invaded the fundamental rights guaranteed in Part-II, Chapter-1 of the Constitution. There is always presumption in favour of constitutionality of an enactment and Courts are not supposed to struck down a law merely on technical grounds, therefore, a question relating to the correct ness or validity of an order and judgment of the Supreme Court whicl has otherwise attained finality, cannot be entertained in the proceedings under Article 184(3) of the Constitution but the Court may in an appropriate case in which a fundamental right is being infringed, can entertain an original petition as right to move the Supreme Court in a ease of violation of fundamental right is itself a fundamental right. It is thus essential that existence of a fundamental right and its breach actual or threatened, must be established to entertain a petition under Article 184(3) of the Constitution. The power of the Supreme Court under Article 184(3) of the Constitution for enforcement of fundamental right is not confined to the extent of issue of prerogative writs and also is not necessarily circumscribed by the conditions to limit the exercise of power rather this Article is wide enough to consider the question of public importance relating to the violation of fundamental rights.
40. The scope of judicial review of the Supreme Court perhaps is most extensive known to the world of law as the Supreme Court in exercise of this power, can examine the validity even of an amendment in the Constitution which is violative of the basic structure of the Constitution.
However, the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution is not supposed to give a declaration which has no useful purpose so far as, the public interest is concerned and this power is also not invokeable in absence of a direct and casual violation of fundamental right guaranteed under the Constitution. The right to vote or right to contest the election is a statutory right and is subject to the limitation imposed by the Statutes, therefore, the provision of law relating to such rights may not be challengeable with reference to the fundamental rights as the right to file a petition under Article 184(3) of the Constitution arises only in a case of infringement of the fundamental right or a serious threat to infringe such a right but mere apprehension of breach of fundamental right is not enough to invoke these extra-ordinary provisions. This is also settled principle of law that under this provision the Court will not answer a hypothetical question even if such a question in its substantial context may be of public importance relating to the fundamental rights and similarly the Supreme Court may refuse to grant relief in exercise of its original jurisdiction in a case, filed with delay although delay does not take away the jurisdiction of the Court.
41. In the light of foregoing discussion, there can be no departure to the Constitutional mandate that unless a matter of public importance concerning with the enforcement of fundamental rights conferred by Part II, Chapter-1 of the Constitution is involved in a petition under Article 184(3) of the Constitution, it is not entertain able. In the present case, the matter to the extent of the Presidential election is certainly has public importance but we have not been able to digest that the questions raised therein really relates to the enforcement of the fundamental rights conferred by Part II Chapter-1 of the Constitution (Articles 8 to 28). The expression "enforcement" has predominant significance with reference to "fundamental rights" and reliance may be placed on; (1) Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), (2) Federation of Pakistan v.
Muhammad Saifullah Khan (PLD 1989 SC 166), (3) Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), (4) Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), (5) Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869 ), (6) Aftab Shahban Mirani v.
President of Pakistan (1998 SCMR 1863), (7) Muhammad Rafiq Tarrar v. Mukhtar Ahmed Junejo (PLD 1998 Lahore 461), (8) Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 SC 161), (9) All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600), and (10) I.A. Sharwani v.
Government of Pakistan (1991 SCMR 1041).
42. In the present case, the petitioners have sought a declaration against General Pervez Musharraf, a prospective candidate in the forthcoming Presidential election, that under the Constitution he while holding the office of Chief of Army Staff, is not eligible to participate in the election and have challenged his candidature before the start of election process in these petitions. The learned counsel for the petitioners, however, have not been able to satisfy us that in what manner the candiddature of General Pervez Musharraf causes infringment of any of the fundamental rights guaranteed under the Constitution and how it relates to the enforcement of such rights under Article 184(3) of the Constitution.
43. This Court in the case of Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869), held that fundamental rights provided in Part-II. Chapter 1 of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution. In Qazi Hussain Ahmad v. Pervez Musharraf, Chief Executive (PLD 2002 SC 853) it was observed that the powers of the Government were strictly circumscribed in the judgment in Syed Zafar Ali Shah's case supra. In Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), it was observed that this Court can exercise jurisdiction without prejudice to Article 199 if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights mentioned therein is involved and has power to do complete justice under Article 187 of the Constitution. In Wattan Party v. Federation of Pakistan (PLD 2006 SC 697), this Court while dealing with a constitution petition, held that Supreme Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights or the provisions which are found inconsistent with the Constitution. In Wasim Sajjad v. Federation of Pakistan (PLD 2001 SC 233) while dealing with doctrine of State necessity, it was held that to save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people while interpreting the legislative instruments, the Court has to make every attempt to save what institutional values required to be saved. In Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) it was held that preliminary objection regarding the maintainability of the petition should be joined with the question arising on merits and both the questions should be heard and decided together. In Amanullah Khan v. Chairman Medical Research Council (199'5 SCMR 202), this Court in its original jurisdiction while dealing with a petition seeking ban on commercials appearing on TV on behalf of cigarette companies, held that the petition did not fall within the restricted jurisdiction enjoyed by this Court under Article 184 (3) of the Constitution. In Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793), it was held that the allegation of discrimination made by the petitioners having been denied by the employer Corporation, the issue of discrimination both on legal as well as factual planes required enquiry into the factual aspects which could not be taken up by the Supreme Court in the proceedings under Art.184(3) of the Constitution. This Court in "All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600)" held that jurisdiction under Article 184(3) would be exercised subject to the establishing by furnishing convincing evidence, as to the non-availability of any other adequate remedy and that question of public importance with reference to enforcement of fundamental rights had been made out. In State Life Insurance Employees Federation v. Federal Government of Pakistan (1994 SCMR 1341) it was held that violation of Articles 4 & 5 of the Constitution which do not fall in Part II Chapter 1 of the Constitution, cannot attract the jurisdiction of Supreme Court under Art.184(3) of the Constitution. This Court in Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), held that the questions raised in the direct petition must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large irrespective of the fact that who raised such question. In Muhammad Siddique v. Government of Pakistan (PLD 2005 Supreme Court 1), it was held that the issues arising in a case, cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue, in order to assume the character of public importance, must be such that its decision affects the rights and liberties of people at large. The expression 'public' necessarily implies a thing belonging to people at large, the nation, the State or a community as a whole but if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance. In Renazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), this Court while dealing with Article 184(3) held that vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown where the Act is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner. This Court in "Javed Jabbar and 14 others v. Federation of Pakistan and others (PLD 2003 Supreme Court 955) held that filing of a constitutional petition depends upon the nature of the case and the inbuilt provisions of Article 184(3) of the Constitution can be invoked in a case relating to violation of fundamental rights and question of public importance.
44. The ratio of the judgment referred hereinabove is that unless the matter is of public importance relating to the enforcement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 28), the jurisdiction of the Court under Article 184 (3) of the Constitution, cannot be invoked. The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of this Court under Article 184 (3) of the Constitution. Consequently, we having considered the matter in the light of the law laid down by this Court in the judgments referred hereinabove, find that these petitions under Article 184(3) of the Constitution are not maintainable and we are not persuaded to agree with the assertion that in view of the nature of dispute and importance of the matter, the Court may ignore the objection and decide these petitions on merits.
This may be pointed out that in the light of constitutional mandate as contemplated in Article 184(3) of the Constitution this Court may not entertain a direct petition under Article 184(3) in a matter not involving the enforcement of any of fundamental rights mentioned therein. The question raised in the present petitions do not as such relate to the fundamental rights conferred by Part II Chapter 1 of the Constitution and most of these questions even otherwise are speculative and presumptive in nature at this stage. There is clear distinction between Article 199 and Article 184(3) of the Constitution and this Court has repeatedly held that in the matters which do not involve enforcement of the fundamental rights of the public at large as envisaged in Article 184 (3) of the Constitution, a direct petition in original jurisdiction is not entertainable.
45. The exercise of jurisdiction under Article 184 (3) of the Constitution is certainly subject to the condition that matter is of public importance and is also related to the enforcement of fundamental rights conferred by Part II Chapter 1 of the Constitution and these fundamental rights are incorporated in Articles 8 to 28 as under :- "(8) Laws inconsistent with or in derogation of Fundamental Rights to be void, (9) Security of person
(10) Safeguards as to arrest and detention, (11) Slavery, forced labour, etc., prohibited, (12) protection against retrospective punishment, (13) Protection against double punishment and self- incrimination, (14) Inviolability of dignity of man, etc, (15) Freedom of movement, etc, (16) Freedom of assembly, (17) Freedom of association, (18) Freedom of speech, etc, (19) Freedom to profess religion and to manage religious institutions, (20) Safeguard against taxation for purpose of any particular religion, (21) Safeguard as to educational institutions in respect of religion, etc., (22)
Safeguards as to educational institutions in respect of religion, etc, (23) Provision as to property,
(24) Protection of property rights, (25) Equality of citizens, (26) Non-discrimination in respect of access to public places, (27) Safeguard against discrimination in services and (28) Preservation of language, script and culture."
46. The learned counsel for the petitioners in the present petitions half-heartedly argued that subject matter of these petitions may fall within the purview of Articles 17 and 25 of the Constitution and we with a view to ascertain that in what manner the rights guaranteed under Articles 17 and 25 of the Constitution, have been violated, consider it necessary to examine these Articles : -
17. Freedom of association.--(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan or public order and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or public order the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final: ' Provided that no political party shall promote sectarian, ethnic, regional hatred or animosity, or be titled or constituted as a militant group or section.
(3) Every political party shall account for the source of its funds in accordance with law.
(4) Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders."
25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
47.In the light of nature of rights guaranteed under Articles 17 and 25 of the Constitution, the learned counsel for the petitioners have not been able to point out that which particular right under these Articles required enforcement and in what manner these rights of the petitioners or any other person, were infringed to bring the matter within the ambit of Article 184(3) of the Constitution.
Article 25 of the Constitution envisages that all persons are equal before law and a person aggrieved of any discriminatory treatment in respect of any of his right may approach the High Court and avail the remedy of writ petition for redressal of his grievance under Article 199 of the Constitution and if the question relating to the discriminatory treatment in respect of any of fundamental rights concerns with public at large, a direct petition under Article 184(3) of the Constitution is entertainable. In the present case, petitioners have questioned the eligibility of the respondent to contest the election for the office of President which has no nexus with the rights guaranteed under Articles 17 and 25 of the Constitution.
The principle of equality and equal protection of law embodied in Article 25 of the Constitution envisages that All citizens are equal before law and are entitled to equal protection of law without any discrimination. This principle is however subject to reasonable classification and this Court in Government of Balochistan v. Azizullah Memon (PLD 1993 Supreme Court 341) held that no standard of universal application to the test of reasonableness of a classification can be laid down as what may he reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances. Looking into the matter in the perspective of Article 25 of the J Constitution, we have not been able to find out any substance in the contention that respondent (General Pervez Musharraf) being in advantageous position, has edge over the other candidates in the election and similarly, the members of Armed Forces of the equal rank of General Pervez Musharraf have been discriminated in respect of equal chance of appointment as COAS.
48. In the light of the above discussion, we having come to the conclusion that the questions raised in these petitions do not directly or indirectly relate to the enforcement of any of the fundamental rights conferred by Part-II, Chapter 1 of the Constitution as contemplated in Article 184(3) of the Constitution and consequently, the objection of the respondents regarding the maintainability of these petitions is upheld.
49. This may be pointed out that most of the questions raised in these petitions relate to the eligibility of President General Pervez Musharraf, a prospective candidate in the forthcoming election for the office of President are speculative and presumptive in nature which otherwise fall in the domain of Election Commissioner of Pakistan, a constitutional forum and thus these petitions before this Court being premature are not maintainable. In the light of above discussion, we may conclude as under:--
(i) That notwithstanding the public importance of the matter, the questions raised in these petitions do not as such relate to the enforcement of any of the fundamental rights guaranteed in Part II, Chapter-1 of the Constitution (Articles 8 to 28) therefore, these petitions under Article 184(3) of the Constitution are not maintainable.
(ii) The question as to whether a person is not qualified to contest the election for the office of President in terms of Article 41(2) read with other provisions of the Constitution, does not relate to the enforcement of any of the fundamental rights of the petitioner or any other person, to maintain these petitions before this Court in its original jurisdiction under Article 184(3) of the Constitution.
(iii) (iii) The Parliament, pursuant to its legislative competence under 0 the Constitution, has enacted Act VII of 2004 and this Court having found the said Act not in conflict to any provision of the Constitution, validated the same in Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) and pending a review petition against this judgment a fresh petition after lapse of a period more than two years on the same subject, may not be entertainable.
(iv) The question relating to the application of Article 63 read with Article 62 of the Constitution to determine the eligibility of a person to contest the election for President cannot be raised before this Court at this stage as the matter squarely falls within the jurisdiction and domain of Election Commissioner of Pakistan, a constitutional forum of exclusive jurisdiction.
50. In the light of above discussion and in view of the facts and circumstances of the present cases, we are of the considered opinion that the questions raised therein are beyond the scope of Article 184 (3) of the Constitution and these petitions being not maintainable, are accordingly dismissed.
51. The above are the reasons of our short order of even date which is accordingly made part of this judgment, and is read as under:-- "For reasons to be recorded later, as per majority view of 6 to 3, these petitions are held to be not maintainable within he contemplation of Article 184 (3) of the Constitution.
2. As per minority view of Mr. Justice Rana Bhagwandas, Mr. Justice Sardar Muhammad Raza Khan and Mr. Justice Mian Shakirullah Jan, all the petitions are held to be maintainable under Article 184(3) of the Constitution and are hereby accepted. Constitution Petition No, 63 of 2007 re: Dr. Anwarul Haq v. Federation of Pakistan and another is disallowed to the extent of seeking permission to contest the election to the office of the President.
' ORDER OF THE COURT
3. As per majority view, these pillions are hereby dismissed as not maintainable." revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.