MUHAMMAD NAWAZ ABBASI, J. - This judgment proposes to dispose of Constitution 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 Pervaiz 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 Constitution 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 XXVI LA, CPC read with Order XXIX, Rule 1 of the Supreme Court Rules, 1980 and also appointed M/s S. M. Zafar, learned Sr. ASC, Mr. Abdul Hafiz Pirzada, learned Sr. ASC and Ch. Aitzaz Ahsan, learned Sr. ASC 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 Constitution Petition No. 59 of 2007 as under: - "This Constitution Petition has been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [herein after 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 [herein after referred to as "the impugned Act"], on the face of it, is discriminatory, lt 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, lt exempts the present incumbent of the office of the President, none else.
(iii) ln 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. Pervaiz 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/nou/any of the law declared by this Court in Sabir Shah v. Shad Muhammad Khan (PLD 1995 S.C 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 Tarar v. Justice Mukhtar Ahmed Junejo (PLD 1998 Lahore 414) and Muhammad Rafiq Tarar 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 i.e 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) ln 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, ln any case, instant petition have been filed after about two years of the judgment not 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.
(f) ln 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. Pervaiz 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. Pervaiz 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. Pervaiz 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.
(l) 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. Shamimur Rehman (PLD 1983 SC 457).
4. Syed Sharifuddin Pirzada, learned Sr. ASC 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 estopple 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. Ln 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. Lt 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 no want to i.e 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 of Pakistan, as such, notice, as required in terms of Order XXVI 1A, CPC 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, Sr. ASC, Abdul Hafiz Pirzada, Sr. ASC and Ch. Aitzaz Ahsan, Sr. ASC 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, learned Sr. ASC, Hamid Khan, learned Sr'. ASC, Mr. AK. Dogar, learned Sr. ASC, have represented the petitioners in Constitution Petitioner Nos. 59/2007, 58 & 61/2007, 68/2007 respectively and Malik Muhammad Qayyum, learned Attorney General for Pakistan, Syed Sharifuddin Pirzada, learned Sr. ASC assisted by Raja Muhammad Ibrahim Satti, learned ASC, appeared on behalf of the respondents whereas Mr. S. M. Zafar, learned Sr. ASC, Mr. Abdul Hafiz Pirzada, learned Sr. ASC and Mr. Aitzaz Ahsan, learned Sr. ASC, 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 17th Amendment in the Constitution of any other law for the time being in force, General Pervaiz Musharraf, the present incumbent of the office of President being not qualified to be elected or chosen as member of National Assembly is lacking the requisite qualification to contest the forthcoming election of President of Pakistan. The precise argument of the learned counsel was that apart from the qualification of a candidate for the election of President mentioned in Article 41(2) of the Constitution that he should be a Muslim of not less than 45 years of age and should also possess the qualifications mentioned in Article 62 the Constitution to be elected or chosen as a member of Parliament, he 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(l)(d) of. The Constitution on 30th November, 2004 which was enforced on 31.12.2004, has contended that the enactment of this law was mala-i.e and beyond the scope of the legislative competence of the Parliament. They, with reference to the judgment of this Court in Zafar Ali Shah vs. General Pervaiz Musharraf, Chief Executive (PLD_2000 SC 869) have contended that it being ultra vires to the Constitution was not a valid law and would not remove the disqualification incurred by General Pervaiz Musharraf (respondent herein) under Article 63(1) (d) (k) and (o) of the Constitution. The learned counsel submitted that the respondent while occupying the office of Chief of Army Staff (COAS) in ' violation of the Army Regulations Vol. I (Rules) 1998 and his oath as Member of Armed Forces under Article 244 read with 3rd Schedule of the Constitution, is not qualified to contest the election for the office of. President and argued that the judgments rendered by this Court in the cases of Qazi Hussain Ahmed vs. General Pervaiz Musharraf, Chief Executive (PLD 2002 SC 853) and Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719), wherein the verdict given to the effect that Article 63 was not applicable for determination of the eligibility of a candidate to contest the election for the office- of President in terms of Article 41(2) of the Constitution, was contrary to the law laid down by this Court in Pir Sabir Shah vs. Shad Muhammad Khan (PLD 1995 SC 66) and these judgments were not only per in curiam but were 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 ASC, 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 the light of provision of Article 41(7) (b) read with Article 62 of the Constitution as well as Act VII of 2004 and the law laid down by this Court in above-referred judgments.
5. The main thrust of the arguments of the learned counsel for the petitioners was that General Pervaiz 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 me matter to maintain these petitions under Article 184(3) of the Constitution.
6. Mr. Muhammad Akram Sheikh, learned Sr. ASC, counsel for the petitioner in Constitution Petition No. 59 of 2007, has contended that in the cases namely Aftab Shahban Mirant vs. President of Pakistan (1998 SCMR 1863), Malik Hamid Sarfraz Vs. Federation of Pakistan (PLD 1979 SC 991), Asad Ali Vs. Federation of Pakistan (PLD 1998 SC 161), Mian Muhammad Shahbaz Sharif Vs. Ch. Muhammad Altaf Hussain, (PLD 1995 Lahore 541), Justice Muhammad Rafique Tarrar Vs. Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner of Pakistan and 6 others (PLD 1998 Lah.
461), Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719), Qazi Hussain Ahmed, Ameer-e-Jamat-e-islamic and others Vs. General Pervaiz Musharraf, Chief Executive and others (PLD 2002 SC 853) the view taken 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 the law laid down by this Court in Pir Sabir Shah Vs. Shad Muhammad Khan (PLD 1995 SC 66). The learned counsel submitted that Articles 62 and 63 of the Constitution are to be read together for the purpose of determination of the qualifications of a person to be elected or chosen as Member of the Parliament and in the same manner, the eligibility of a person who intends to contest the election for the office of President is to be determined under Article 41 (2) of the Constitution.
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 the purpose of determining the eligibility of a candidate for the election of President. The learned counsel placing reliance on Zafar AH Shah vs. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), Sardar Faruq Khan Leghari vs. Federation of Pakistan (PLD 1999 SC 57) and Pir Sabir Shah Vs. Shad Muhammad Khan (PLD 1995 SC 66) submitted that the judgment rendered 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 acceptable as Head of State to every one in the larger interest of sovereignty and integrity of Pakistan, ln view thereof, 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's 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 vs. President of Pakistan and others (1998 SCMR 18$3) by virtue of which the judgments of the Lahore High Court in the cases of Justice (R) Muhammad Rafique Tarrar Vs. Justice Mukhtar Ahmed Junejo (PLD 1998 Lah 461) and Mian Muhammad Shahbaz Sharif Vs. Ch. Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others (PLD 1995 Lah. 541) on the same subject were upheld, was not in accordance with the Constitutional mandate. The learned counsel submitted that the principle of true and harmonious interpretation of law, would require that eligibility of a person as candidate for election of President of Pakistan must be determined under Article 41(2) read with Articles 62 and 63 and consequently, the judgments referred above were not only contrary to the law laid down by this Court in Pir Sabir Shah's case supra, but were 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 Pervaiz Musharraf is that he after relinquishing the charge of the office of Chief Executive in terms of Article 41(7)(b) of the Constitution has almost completed a full term of office of President and prior to the assumption of office 6f 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 in terms of Article 44(2) of the Constitution, is not eligible to contest election for the third term. The learned counsel added that General Pervaiz Musharraf having not relinquished the office of COAS in pursuance to 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 of chosen as Member of Parliament to hold the office of President and consequently, notwithstanding the Article 270-AA of the Constitution and 17th Amendment, he while holding the office of COAS cannot hold 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 fulfill 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 General Pervaiz Musharraf 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 titled Government of Baluchistan Vs. Azizullah Memon (PLD 1993 SC 341), Fauji Foundation vs. Shamimur Rehman (PLD 1983 SC 457), Inamur Rehman Vs. Federation of Pakistan and another (1992 SGMR 563), Kanta Kathuria Vs. Manak Chand Surana [970] 2 SCR 835) and Muhammad Shahbaz Sharif V.
Muhammad Altaf Hussain (PLD 1995 Lahore 541), has submitted that he has rendered himself disqualified to contest the election for the office of President.
11. Mr. Hamid Khan, Sr. ASC, learned counsel in the Constitution Petition Nos. 58 & 61/2007 has submitted that General Pervaiz 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 to the prevailing situation, submitted that General Pervaiz Musharraf 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 the above dates, therefore, his continuation in the said office was illegal and unconstitutional, ln consequence thereto, 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 clause (k) and (o) of this Article of the Constitution is not eligible to contest the election of the office of President. The learned counsel added that General Pervaiz Musharraf indulged in political activities in violation of his oath as Member of Armed Forces under Article 244 with 3rd Schedule of the Constitution as well as Pakistan Army Regulations Vol. I, (Rules) 1998, and also having not relinquished the office of COAS in terms of proviso to Article 41(7)(b) inserted through 17th Amendment in the Constitution, has incurred a patent disqualification to hold the office of President or to become a candidate in the forth coming election for President.
12. Learned counsel next argued that Act VII of 2004 being violative of Article 2-A read with Articles 8, and 25 of the Constitution is not a valid law to have any legal effect and in the light of law laid down by the Supreme Court of India in Amirunnisa Begum Vs. Mehboob Begum (AIR 1953 SC 91) and by the Supreme Court of Pakistan in Abrar Hassan Vs. Govt, of Sindh (PLD 1976 SC. 315), General Pervaiz 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 these Assemblies as provided in Article 52 and Article 107 of the. Constitution respectively, are also expiring with the term of President in office.
14. Mr. A.K. Dogar, Sr. ASC, learned counsel in Constitution Petition No. 68/2007 with reference to the events of military Take-over and Proclamation of Emergency in October, 1999, promulgation of Provisional Constitution Order and pronouncement of judgment in Zafar Ali Shah's case in 2000, the President Successions Order, 2001/the Referendum Order, 2002, Legal Framework-Order, 2002, the Holding of General Elections Order,20O2, 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 Pervaiz Musharraf in the office of COAS after 31.12.2004 was unconstitutional. The learned .Counsel added that promulgation of Act VII of 20Q4 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 along with the office of President. He argued that the expression 'declared' has been used in Article 63(1 )(d) of the Constitution with reference to the laws already in existence whereas Act VII of 2004 was enacted subsequent to the 17th Amendment in the Constitution exclusively for the benefit of General Pervaiz Musharraf to undo the effect of proviso added in Article 41(7)(b) of the Constitution to enable him to hold, the office of President along with office of COAS in utter disregard to the legislative competence of the Parliament and the law laid down by this Court in Mahmood Khan Achakzai Vs. Federation of Pakistan (.1997 SC 426), As a Jillani Vs. 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 Vs. Federation of Pakistan (PLD 2005 SC 719), it was still open for this Court to examine the validity of 17th amendment and Act VII of 2004 by virtue of withship an encroachment was made on the political rights of the people as incorporated in 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 vs. Pervaiz 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 leamed counsel is that notwithstanding the protection provided to General Pervaiz Musharraf (respondent) under Article 41(7)(b) to hold the office-bf COAS with the office of President, the occupation of office of COAS beyond the scope of provison added therewith by 17th Amendment in the Constitution, was violative of Articles 63, 41 and Article 43 of the Constitution, therefore, his disqualification to contest election, was floating on the surface and this Court may not hesitate to examine the question of his eligibility as a candidate in the election of President in its original jurisdiction under Article 184(3) of the Constitution before or after the election and placing reliance on Al-Jehad Trust vs Federation of Pakistan (PLD 1996 SC 324) added that the President having involved himself in political activities and patronizing a political party, has rendered himself liable to be removed from office under Article 47 of the Constitution and consequently, he would also be 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 vs. Shad Muhammad Khan (PLD 1995 SC 66) contended that the disqualification of a person referred therein 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 also having acted in the manner prejudicial to the integrity and independence of the judiciary and ridiculing the Armed Forces of Pakistan for his personal gain has lacked qualification under Article 62(f) of the Constitution and also earned disqualification under Article 63(g) of the Constitution 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 with the assertion 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 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 determine his eligibility as a candidate in such election 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. Therefore, 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 and a direct petition under Article 184(3) of the Constitution before this Court in such a case is not maintainable.
19. The learned Attorney General forcefully argued that in view of the law laid down by the Supreme Court of India in Mahendra Lai vs. State of U.P. (AIR 1963 SC 1019), the question whether a judgment is per in curiam is not a question relating to the enforcement of any fundamental rights mentioned in Part-ll of Chapter 1 (Articles 8 to 28) of the Constitution. He submitted that the expression per in curiam means wrong decision or a decision rendered in ignorance of law but a judgment is not per in curiam merely for the reason that it contains a different view on a question of law to that of the view rendered in an earlier judgment and so long such a judgment is in the field, it has binding effect in terms of Article 189 of the Constitution. This is settled proposition of law that if a person on the relevant date is qualified to \be elected as member of Parliament, the eligibility of such a person cannot be subsequently redetermined 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 flection and has also right to raise objection before the appropriate forum that his opponent is not qualified to contest the election but such rights do not fall under Part II, Chapter 1 of the Constitution, therefore, this Court may not exercise jurisdiction under Article 184(3) of the Constitution in such matters.
20. Learned Attorney General with reference to the cases titled Qazi Hussain Ahmed Ameer-.e- Jamat-e- Islami and others vs. Pervaiz Musharraf, Chief Executive, and others (PLD 2002 SC 853), Pakistan Lawyers Forum vs. Federation of Pakistan (PLD 2005 SC 719) and Aftab Shahban Mirani vs. 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 while placing reliance on All Pakistan Newspaper Society vs. Federation' of Pakistan (PLD 2004 SC 600), Muhammad Shahbaz Sharif v.
Federation of Pakistan (PLD 2004 SC 583), Syed Zulfiqar Mehdi and another Vs. Pakistan International Air Lines through M.D. Karachi and others (1998 SCMR 793) and Manzoor Elahi Vs. Federation of Pakistan (PLD 1975 SC 66) argued that these petitions are not maintainable under Article 184(3) of the Constitution.
21. Ln the wake of arguments on merits learned Attorney Genera! 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. Ln support of the proposition, he has placed reliance on the cases of Aftab Shah ban Mirani 'Vs:. Chief Election Commissioner and others (1998 SCMR 1863), Pakistan Lawyers Forum Vs. Federation of Pakistan (PLD 2005 SC 719) and Qazi Hussain Ahmed Ameer-e-Jamat-e-lslami and others vs. General Pervaiz 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 view of the legal position explained therein, General Pervaiz Musharraf, is not suffering from any disqualification mentioned therein to participate in the election of President as candidate. He submitted that be that as it may, all questions relating to the eligibility of a candidate in the election of President must be raised before Chief Election Commissioner, a. Forum provided under the Constitution and with reference to Kanta Kathuria vs. Manak Chand{A\R 1970 SC 694), N. income Singh vs. Chandramani Singh (AIR 1977 SC 682), Province of East Pakistan vs. Siraiul Haq Patwari (PLD 1966 SC 854), Multiline Associates vs. Ardeshir Cowardree (PLD 1995 SC 423), Fauji Foundation vs. Shamimur Rehman (PLD 1983 SC 457), L. N..
Mishra Institute of E.D. And Social Change Vs. State of Behar (AIR 1988 SC 1136), Qazi Hussain Ahmed, Ameer-e-Jamat-e- Islami and others vs. Pervaiz Musharraf, Chief Executive, and others (PLD 2002 SC 853) he forcefully argued that these petitions are neither maintainable nor have -any substance to succeed on merits.
23. Syed Sharifuddin Pirzada, learned Sr. ASC having adopted the arguments of learned Attorney General, has submitted that learned counsel for the petitioners have not been able to point out the involvement of any. Question relating to the enforcement of any of the fundamental rights in the present petitions. The different interpretation in two judgments on a question of law is not as such a matter relating to ^he 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, supra, 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 vs. Babu (AIR 2004 SC 754) submitted that notwithstanding the divergent opinion of this Court on a question of law, the law so declared unless is changed, has binding effect under Article 189 of the Constitution and cannot be ignored.
24. Mr. S.M. Zafar, learned Senior ASC 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 vs. 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 Sr. ASC on behalf of General Pervaiz 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 which may 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 General Pervaiz Musharraf, the present incumbent of office of President by virtue of Article 41(7)(b) of the Constitution and this Court may direct him 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 vs. Pervaiz 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 were done for restoration of democracy, therefore, the questions raised in the present petitions may have no substantial bearing on the real issue rather may have adverse effect on smooth transfer of power at this stage.
26. Mr. Abdul Hafiz Pirzada, learned Sr. ASC ' 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 eligibility of General Pervaiz Musharraf to contest the election of President, stands removed on the undertaking given by Syed Sharifuddin Pirzada, learned Sr. ASC in the Court on his behalf for relinquishing the office of COAS, therefore, there is no need to further proceed with these petitions. The learned counsel while distinguishing the judgment in Pir Sabir Shah's case cited before the Court in respect of the question relating to the application of Article 63 of the Constitution to the election of President, submitted that the judgments in Qazi Hussain Ahmed and Lawyers Forum cases were not per in curiam and submitted that by virtue of proviso to Article 41(7)
(b) read with Act VII of 2004 General Pervaiz Musharraf- may not hold the office of COAS beyond the date of expiry of his current term of office of President. Be that as it may, 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 and since Constitutional aberration in Pakistan, was a normal practice, therefore, a worst kind of democracy would be better to that of an ideal dictatorship. The learned counsel tracing out the Constitutional history of Pakistan suggested that this Court may not allow the obstruction in the transition of powers at this stage.
27. Mr. Aitzaz Ahsan, Sr. ASC also appearing as amicus curiae, has contended that under the Constitution no person in the 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 in the light of legal position, the following situations may arise in the facts and circumstances of the present cases.
(i) ln consequence to 17th Amendment in the Constitution, Gen. Pervaiz 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) ln view of the statement made by Syed Sharifuddin Pirzada, learned Sr. ASC on behalf of General Pervaiz Musharraf that he will relinquish the office of COAS before taking oath of office of President for the next term, lie 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) ln view of the provisions of Article 63 (1) (d) (k) and (o) of the Constitution, it is clear that General Pervaiz Musharraf while * holding the office of COAS is not eligible under Article 41 (2) read with Article 44(2) of the Constitution to contest the election for the office of President and in the light of theory of separation of powers under the Constitution while being Member of Armed Forces cannot occupy any other elective office.
28. ' Mr. Aitzaz Ahsan, learned Sr. ASC, has argued that there is a Constitutional and legal i.e 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. 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 Pervaiz 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 must not be determined only on the basis of qualification mentioned in Article 62 of the Constitution rather his eligibility must be determined in the light of disqualifications mentioned in Article 63 of the Constitution and in the present case, General Pervaiz Musharraf by virtue of his oath under Article 244 read with 3rd Schedule of Constitution, 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 cases Sabir Shah (PLD 1995 SC 66), Dr. Zakar Hussain's case (AIR 1968 SC 908) and Shahbaz Sharif vs. Altaf Hussain PLD 1995 Lahore 541) argued that qualification and disqualification must be given effect together 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 a candidate in such election, must be qualified to be elected as Member of Parliament. Learned counsel thus emphasized that the proposition raised herein would require examination in the light of principle of rational interpretation of the law on the subject.
29. 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 and in the light of concept of original jurisdiction of the Supreme Court under the Constitution as well as the law laid down by this Court, we at the first instance, 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, --.Ln this clause, "Governments" mean? The Federal Government and the Provincial Governments (2) ln the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only, v (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 I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
30. 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-ll Chapter-1 of the Constitution Therefore, we in the light of law laid down by this Court on the subject, would like to examine the question as to whether the present petitions qualify the test of maintainability under Article 184(3) of the Constitution.
31. 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 circumstance 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 bv. a large number of people should always be considered as a case of "public importance" because a large 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 lights 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 bv an individual or a group of individuals."
32. 1h Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793), the expression "public importance" was discussed in the following manner:-- "8. Ln order Jo 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 Ellahi vs. 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. Ln 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, ln 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, ln 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)
33. 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. Ln 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 I 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." lt 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 conditional 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 bn 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, lt is not every question of public importance which can be entertained bv 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. Lt 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, lt can t>e exercised where the Fundamental Right exists and a breach has been committed or is threatened. The attributes of Article 199 being an aggrieved person or of an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or nonsuit 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 reguire voluminous evidence can be looked into wher 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)
34. Ln 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 arty of the Fundamental Rights conferred by Chapter I 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 I of. Part II of the Constitution.
4. Lt 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, lt 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 (2V 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.-(1) 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, with 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 -- (in 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 unplayful 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."
35. Ln Shahida Zabir Abhasi 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 1.84(3) merely indicated that the . Power of the High Court under Article 199 ibid was left intact and has hot 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 I 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 procedural trappings of Article 199. Ibid, nor by the limitations mentioned in that Article or exercise power by the High Court in 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 Constitutions. 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) of 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 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 jurisdictional requirements, no other considerations are relevant for exercise of power bv this Court under Article 184(3) of the Constitution." (Emphasis provided)
36. Ln case of Benazir Bhutto vs. 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, ln this context what would be relevant would be the language of the provisions of the impugned Act itself lt 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, ln such a case the infringement of the Fundamental Right is complete co instant 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."
37. 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, lt caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference, lt 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, lt is the 'remedy' that makes the right real, lt is often said that without 'remedy' there is no right, lt 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 straitjacket 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 I of Part II is involved, it should directly interfere, and any rigid formula or straitjacket 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."
38. 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-li 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 I of the Constitution is not involved as the remedy under this Article is only for the enforcement of fundamental rights in a case of public importance. The validity of any law or a provision of State 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 other provision 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 breach of such right is a matter .Of public importance. 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 I of the Constitution has been violated. The Supreme Court indeed has power to rectify its own mistake but the provision of Article 184(3) of the Constitution is invokable only in the matter of public importance relating to the enforcement of fundamental rights. The question pertaining to the determination of the legislative competence or vires of a particular enactment can only be gone into by this Court in its original jurisdiction under Article 184(3) of the Constitution if a case is made out for interference, by establishing that a law so enacted was beyond the competence of the legislature or it was not covered by the legislative list or the same has invaded the fundamental rights guaranteed in Part-ll, Chapter-1 of the Constitution. The general principle is in favour of presumption of Constitutionality of an enactment and Courts are not supposed to struck down a law merely on technical grounds for collateral purposes. Similarly, the question relating to the correctness or validity of an order and judgment of the Supreme Court may not as such be entertainable in the proceedings under Article 184(3) of the Constitution to undo the effect of such order or judgment. However, 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 case of violation of fundamental right is itself a fundamental right, lt 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.
39. 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 invoke able in absence of a direct and casual violation of fundamental right guaranteed under Part-ll of Chapter 1 of the Constitution. The right to contest the election may be a Constitutional right which is regulated by the limitation imposed by the State and consequently, the provision of law relating to such right or right to vote may not as such fall within the purview of fundamental rights in Part-ll of Chapter I of the Constitution to bring the matter relating to -such rights within the ambit of Article 184(3) of the Constitution as the right to i.e 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. The mere apprehension of breach of fundamental right is not enough to. Invoke the extra-ordinary jurisdiction of the Supreme Court as the Court is always reluctant to answer the hypothetical question even if such a question its substantial context may be of public importance relating to- the enforcement of fundamental rights and similarly the Supreme Court may not grant relief in exercise of its original jurisdiction in a case, filed with inordinate delay notwithstanding the fact that delay would not effect the jurisdiction of the Court.
40. Ln the light of foregoing discussion, limine 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 of Chapter-1 of the Constitution is involved in a petition under Article 184(3) of the Constitution, it is not maintainable, ln 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) to invoke the jurisdiction of this Court under Article 184(3) of the Constitution. The expression "enforcement" has predominant significance with reference to "fundamental rights" and reliance may be placed on; (1) Banazir Bhutto \/s. Federation of Pakistan and another (PLD 1988 SC 416), (2) Federation of Pakistan Vs. Muhammad Saifullah Khan (PLD 1989 SC 166), (3) Banazir Bhutto vs. President of Pakistan (PLD 1998 SC 388), (4)
Muhammad Nawaz Sharif vs. President of Pakistan (PLD 1993 SC 473), (5) Zafar Ali Shah vs. Pervaiz Musharraf, Chief Executive of Pakistan (PLD. 2000 SC 869 ), (6) Aftab Shahban Mirani vs. President of Pakistan (1998 SC.MR 1863), (7) Muhammad Rafiq Tarar Vs. Mukhtar Ahmed Junejo (PLD 1998 Lahore 461), (8) Malik Asad Ali & others vs. Federation of Pakistan (PLD 1998 SC 161), (9) All Pakistan Newspapers Society vs. Federation of Pakistan PLD 2004 SC 600), and (10) I.A. Sharwani Vs. Government of Pakistan J1991 SGMR 1041).
41. The petitioners in the present petitions, have sought a declaration that General Pervaiz Musharraf, a prospective candidate in the forthcoming Presidential election while holding the office of Chief of Army Staff, is not eligible to contest and participate in the election and even otherwise, by virtue of Article 63(1 )(d)(k) and (o), he is hot qualified to contest the election of President.
However, the learned counsel for the petitioners have not been able to satisfy us that in what manner the disqualification of General Pervaiz Musharraf if any has caused infringement of any of the fundamental rights of the petitioners or any other person guaranteed under the Constitution and in what manner it relates to the enforcement of such rights under Article 184(3) of the Constitution.
42. This Court in the case of Zafar Ali Shah vs. Pervaiz Musharraf (PLD 2O0O SC 869), held that fundamental rights provided in Part-11 Chapter-1 of the Constitution shall continue to hold the field but the State would 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, ln Qazi Hussain Ahmad Vs. Pervaiz 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, ln Sabir Shah vs. 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, ln Wattan Party Vs. 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, ln Wasim Sajjad vs. 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, ln Muhammad Nawaz Sharif vs. 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, ln Amanullah Khan Vs. Chairman Medical Research Council (1995 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, ln Zulfiqar Mehdi Vs. Pakistan International Airlines Corporation (1998 SGMR 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. Ln State Life Insurance Employees Federation v. Federal Government of Pakistan (1994 SGMR 134l) it was held that violation of Articles 4 & 5 of the Constitution which do not fall in Part II, Chapter I 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. Ln 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. Ln Benazir 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 Constitution 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.
43. 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 I 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 enforcement of any of 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, ln view of the clear distinction between Article 199 and Article 184(3) of the Constitution, 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.
44. The exercise of jurisdiction under Article 184(3) of the Constitution is certainly subject to the condition that matter is of public importance and also relates to the enforcement of fundamental rights conferred by Part II Chapter I of the Constitution which are incorporated in Articles 8 to 28 of the Constitution 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- incrinination, (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."
45. 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 in 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." *
46. Ln 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. Ln 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 Govt, of Baluchistan v. Azizullah Memon (PLD 1993 Supreme Court 341) held that no standard of universal application to the test ot reasonableness of a classification can be laid down as what may be 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 Constitution, we have not been able to find out any substance in the contention that respondent (General Pervaiz 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 Pervaiz Musharraf have been discriminated in respect of equal chance or appointment as COAS.
47. Ln 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-ll, 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.
48. This may be pointed out that most of the questions raised in these petitions relating to the eligibility of President General Pervaiz Musharraf, a prospective candidate in the forthcoming election for the office of President are speculative and presumptive in nature which even otherwise would fall in the domain of Election Commission of Pakistan, a Constitutional forum and consequently these petitions before this Court apart from being not maintainable, are premature, ln consequence to the above discussion, we may conclude as under: --
(i) Notwithstanding the public importance of the subject matter of these petitions, the questions raised therein do not as such relate to the enforcement of any of the fundamental rights guaranteed in Part II, Chapter-I of the Constitution (Articles 8 to 28) to invoke the original jurisdiction of this Court under Article 184(3) of the Constitution.
(ii) The question as to whether a person is or is not qualified to contest the election for the office of President ln 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 petitioners or any other person, therefore, the direct petition before this Court under Article 184(3) of the Constitution is not maintainable.
(iii) The Parliament, pursuant*to its legislative competence under the Constitution, has enacted Act VII of 2004 which having been found not in conflict to any provision of the Constitution, was validated by this Court in the case of Pakistan Lawyers Forum vs. Federation of Pakistan (PLD 2005 SC 719) and pending a review petition against the judgment in the above case, a separate petition on ^ same subject with a delay of more than two years may not be entertainable. ?
(iv) The question relating to the application of Article 63 read with Article 62 of the Constitution for the purpose of determination of eligibility of a candidate in the election for the office of President squarely falling within the jurisdiction and domain of Election Commission of Pakistan, a Constitutional forum of exclusive jurisdiction, cannot be directly brought before this Court in its original jurisdiction under Article 184(3) of the Constitution.
49, ln 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.
50. 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 the 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 petitions are hereby dismissed as not maintainable."
Petitions dismissed.
As per Mr. Justice Falak Sher. J.
FALAK SHER, J. - With a view to questioning legality of the exposure of candidature of President General Perez Musharraf hereinafter referred to as the Respondent, for the ensuing Presidential elections, captioned petitions were preferred couched under Article 184(3) of the Constitution of 1973, hereinafter referred to as the Constitution, contending that he is disqualified for the sought for office being in the Service of Pakistan as a serving Chief of the Army Staff and could not do so unless a period of two years has elapsed since he ceases to be in that service in terms of Article 63(d) and (k) , respectively; and the President to Hold Another Office Act VII of 2004 purportedly designed to enable him to do so, is ultra vires the Constitution.
2. . After notice to the respondent and the learned Attorney General for Pakistan petitions were placed before this Bench and after hearing the learned counsel for the parties as well as the learned three amicus curiae at length during the course whereof learned counsel for the petitioners namely, Sh. Muhammad Akram, Mr. Hamid Khan and Mr. A. K. Dogar canvassed the arguments for disqualification of the Respondent to whom Mr, Aitzaz Ahsan also joined; to which the learned Attorney General for Pakistan and Mr. S. Sharifuddin Pirzada joined issue in addition to submitting that the petitions are not maintainable placing on record a statement stating that if elected as President the Respondent would relinquish the office of Chief of Army Staff before entering upon the office of the President, while Mr. S.M. Zafar, pleaded facilitation of smooth transition to the civilian rule, and Mr. Abdul Hafiz Pirzada subscribing to the same view opposed the petitions on merits on both the counts.
3. On 28th instant by a majority of six to three the Bench resolved to dismiss the. Petitions being : not maintainable within the contemplation of Article 184(3) of the Constitution, during the course of deliberations by the members of the Bench I while subscribing to the majority view avowed that since the entire case has been heard on merits as well, therefore, in my considered opinion for a person "to be qualified" for the election of the President within the \ meanings of Article 41(2), must not only be equipped with the qualifications enshrined in Article 62 but also ought to be free from the disqualifications envisaged by Article 63 which ought to be read conjunctively since the expression "qualified to be" manifested in Article 41(2) being of composite nature; further, the President to Hold Another Office Act VII of 2004 is ultra vires the Constitution.
4. Whereupon it was proposed that for brevity of the order I can record my opinion separately which accordingly venture upon confining my views on the two counts viz. Maintainability and eligibility of the Presidential candidate in the scenario referred to supra.
5. Embarking upon the jurisdictional question, text of Article 184(3) in extension is reproduced herein below for the sake Of convenience of reference conferring original jurisdiction of this Court other than exclusive jurisdiction pertaining to inter-Government disputes being the subject matter of the preceding clauses (1) and (2):- "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 If is involved, have the power to make an order of the nature mentioned in the said Article." -
6. Perusal whereof reseals that sine qua non for availing of this jurisdiction two conditions precedent should co-exist as an essential concomitant viz. The lis should engulf question of public importance concerning enforcement of fundamental rights which are conferred by Chapter-I of Part- II. Of the Constitution.
7. The first jurisdictional fact pertaining to the juridical classification of the lis, being beyond the pale of any ambiguity since the same relates to the eligibility of the serving Chief of Army Staff's candidature for the Presidential election thus is obviously a question of public importance.
8. However, the second limb offers the difficulty since it starts with the rubric ENFORCEMENT OF THE FUNDAMENTAL RIGHTS conferred by Chapter-!, Part-11 spelt out in Articles 8 to 28 text whereof for the sake of convenience of reference is reproduced herein below: "8. (1) Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights, conferred by this Chapter, shall, to the extent of such inconsistency, be void. '
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to-
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the -
(i) -taws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other law specified in Part I of the First Schedule] and no such law noranv~ provision thereof shall be void on the ground that such law or provision is inconsistent . With, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [Part II of the First Schedule] into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation in respect of any law [Majils-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.
9. No person shall be deceived of life or liberty save in accordance with law.
10. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the, grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
As per these figures, only 2.6 per cent of the population and 6.9 per cent of the registered voters are graduates. These graduates include persons in the service of Pakistan, who do not have the right to contest election under Article 17 of the Constitution 45 The learned Attorney-General for Pakistan submitted that nowhere in the world any restriction regarding educational qualification to contest election existed and Pakistan was the only country where such restriction was imposed. As against this, Mr. Khaki took the plea that the Constitutions of other countries were not relevant because our Constitution and culture were unique. The Sub-Continent was partitioned on the basis of two- nation theory giving birth to two independent states, one based on the Islamic Ideology and the other professing Hindu religion and culture, i. e. One Islamic State and the other a Hindu State. The learned Attorney-General submitted that it was not the question of logic of the law, which this Court could not go into However, a law would be struck down if it placed unreasonable restriction on the fundamental rights as (2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or ' defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding [three months] unless the appropriate Review Board has, after Affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient causes for such detention, and, if the detention is continued after the said period of [three months], unless the appropriate Review Board has reviewed his case and reported, before ' the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
Explanation 1. - ln this Article, " the appropriate Review Board" means, -
(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan .And consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and
(ii) in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice Of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.
Explanation II. -- The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, [within fifteen days] from such detention, communicate. To such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order; Provided that the authority making any such order may refuse to, disclose facts which such authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the appropriate Review Board all documents .Relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
(7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case: . x. . Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an antinational activity as defined in a Federal law or is a member of any association ' which has for its objects, or which indulges in, any such ant national activity],
(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowed i.e for his family.
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.
2. (1) Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction into Pakistan in any form.
(2) All forms of forced labour and traffic in human beings are prohibited.
(3) No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment.
(4) Nothing in this Article shall be deemed to affect compulsory service-
(a) by any person undergoing punishment for an offence against any law; or
(b) required by any law for public purpose: Provided that no compulsory service shall be of a cruel nature or incompatible with human dignity.
3. (1) No law shall authorize the punishment of a person- fa) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed, by law for that offence at. The time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or \ subversion of a' Constitution in force in Pakistan at any time since the twenty-third day of March, .One thousand nine hundred and fifty-six, -an offence.
4. No person--
(a) shall be prosecuted or punished for the same offence more than one; or
(b) shall, when accused of. An offence, be compelled to be a witness against himself.
5. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable . (2) No person shall be subjected to torture for the purpose of extracting evidence.
6. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof, w
7. ' Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order. .
(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan public order or moral the \(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 .1
(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.]
18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade of business: Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the Interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such .Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons.
19. Every citizen shall have the right to freedom of speech and expression, and, there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity,, security or defence of Pakistan or any part thereof, friendly relations with foreign State, public order, decency or morality, or in relation to contempt of Court, Commission of or incitement to an offence.
20! Subject to law, public order and morality.
(a) every citizen shall have the right to profess, practice and propagate his religion; and
(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.
21. No person shall be compelled to pay any special tax the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own.
22. (1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, ' if such instruction, ceremony or worship relates to a religion other than his own.
(2) ln respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.
(3) Subject to law~
(a) no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and
(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.
(4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or ' educationally backward class of citizens.
23. Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable' restrictions imposed by law in the public interest.
24. (1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority .Of law which, provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this" Article shall affect the validity of-- a) any law permitting the compulsory, acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law. Permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under law {not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of . The property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of-
(i) providing education and medical aid to 7 all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenances to those who, on account 'of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any Court.
25. (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.
26. (1) ln respect of access to places of public entertainment or resort, not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, sex, residence or place of birth.
(2) Nothing in cause (1) shall prevent the State from making any special provision for women and children.
27. (1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: Provided that, for a period not exceeding [forty] years from the commencing day, posts may be reserved for persons belonging to any , class or area to secure their adequate representation in the service of Pakistan: Provided further that,, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be Adequately performed by members of the other sex.
(2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period, not exceeding three years, prior to appointment under that Government or authority '.
28. Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose.
9. The expression "Enforcement" deployed by the framers of the Constitution is of predominant significance contemplating that the petitioner should be equipped with either of the spelt out fundamental rights for enforcement whereof he seeks a mandamus, is demonstrative of the fact that save for Articles 17 and 25 none of the remaining Articles has even remotest nexus with the controversy in hand thus impels examination of the latter two.
10. Article 25 envisaging equality of treatment enables a person to seek a recourse to the remedies catered for by Article 199 before the Provincial High Courts, and in the event of the issue involving question of public importance to this Court for ,the alleged discriminatory treatment matted out to him but does not perceive right to question some body else s candidature for election especially without being in the run.
11. Likewise, Article 17 though caters not right of association for infringement whereof obviously this jurisdiction could be invoked in appropriate .Cases of which the following precedents are illustrative: --
(i) Banazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) Challenging amendments in the Political Parties Act, 1962
(ii) Federation of Pakistan vs. Muhammad Saifullah Khan (PLD 1989 SC 166)
(iii) Banazir Bhutto vs. President of Pakistan (PLD 1998 SC 388)
(iv) Muhammad Nawaz Sharif vs. President of Pakistan (PLD 1993 SC 473) Challenging dissolution of the Assemblies and dismissal of the Governments
(v) Zafar Ali Shah vs. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2O0O SC 869) Questioning military takeover
(vi) Aftab Shahban Mirani vs. President of Pa/c/'sten.(1998 SCMR 1363)
(vii) Muhammad Rafiq Tarar vs. Mukhtar' Ahmed Junejo (PLD 1998 Lah. 461) seeking de-seating of the sitting Senator involving factual controversy for allegedly ridiculing the judiciary.
(viii) Malik Asad Ali & others vs. Federation of Pakistan (PLD 1998 SC 161) seeking resolution of the controversy stemmed out of appointment of the Chief Justice of Pakistan against the principle of seniority laid down in Al-Jehad Trust's case (PLD 1996 SC 341) splitting the Court into warring factions for which no other forum could have been recoursed to.
(ix) All Pakistan Newspapers Society vs. Federation of Pakistan (PLD 2004 SC 600) Where the question of public importance was lacking.
(x) I.A. Sharwani vs. Government of Pakistan (1991 SCMR 1041) Pertaining to terms and conditions of a civil servant.
12. The afore-referred cases are distinguishable as a specie since those pertain to the enforcement of the spelt out fundamental right; while the present tis in pith and substance is designed to object to the serving Chief of Army Staff's candidature for the ensuing Presidential election which by no stretch of imagination could envisage enforcement of any of the petitioners' spelt out fundamental right without being contemporary contender in the race; especially when some of them having been instrumental in furnishing a foothold to the regime, conferring blanket umbrella and validation thereof vide 17th Amendment and Article 270-AA, reasons whereof are not beyond comprehension to comprehend especially visualized in the light of the fact that they had the right and, opportunity to pull out the carpet underneath the pedestal of power by repealing it in the event of being averse to the same; thus renders the petitions not maintainable with a right to the petitioners to avail of appropriate remedies, hence I concur with the majority view in holding that the prase are not- maintainable.
13. Adverting to the core issue of eligibility .Of the Respondent for the forthcoming Presidential election it may be pointed out that Articles 41(2) and 41(7) (b) provide the springboard, relevant text whereof is reproduced herein under:-- 41 (2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-i.e years of age and is qualified to be elected as member of the National Assembly.
41 (7) the Chief Executive of the Islamic Republic of Pakistan- (a)
(b) having received the democratic mandate to serve the nation as President of Pakistan for a period of i.e years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of i.e years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly: [Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004]
14. The expression "is qualified to be as a member of the National Assembly, deployed in Article 41(2) is the key governing word of composite character disseminating intendment of the legislature viz. a person aspiring to be a candidate for the Presidency must not only answer the description of qualifications envisaged in Article 62 but also should be free from the disqualifications prescribed by Article 63 which ought to be read conjunctively being inter- dependent, failing which it would be an absolute absurdity to perceive that a person despite being eclipsed by the disqualifications would be qualified to contest the election. For the sake of convenience of comparative glance, text of both the Articles is reproduced herein below:--
62. A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless--
(a) he is a citizen of Pakistan;
(b) he is, in the case of the National Assembly, not less than twenty- i.e years of age and is enrolled, as a voter in any electoral roll in-
(i) any part of Pakistan, for election to a general seat or a seat reserved for non- Muslims; and
(ii) any area in a Province from which he seeks membership for election to a seat reserved for women.
(c) he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;
(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
(f) he is sagacious, righteous and non-profligate and honest and ameen;
(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; .
(h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan: [Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non- Muslim, but such a person shall have good moral reputation; and
(i) he possesses such other qualifications as may be prescribed by Act of Majlis-e- Shoora (Parliament).
63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if-
(a) he is of unsound mind and has been so declared by a competent Court; or
(b) he is an undischarged insolvent; or
(c) ' he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(d) he holds an office of profit in the service of Pakistan other than an office declared bv law not to Disqualify its holder: or
(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of section 14-B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under 'any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or
(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or
(h) he has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or
(i) he has been dismissed from the service of Pakistan or service of - corporation or office set up or, controlled by the Federal I Government, Provincial \ Government or a Local'
Government on the grounds of misconduct or moral turpitude; or
(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or .
(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled bv the government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
(I) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of i.e years has elapsed from the date on which that. Order takes effect; or
(m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of i.e years has elapsed from the date of such conviction-; or
(n) he, whether by himself or by any person or body of persons in trust for him or his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government: Provided that the disqualification. Under this paragraph shall not apply to a person--
(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him; ' _ . (ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1948 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of. Profit under the company; or
(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the . Course of carrying on a separate business in which he has on share or interest; or '
Explanation. - ln this Article "goods" does not include| agricultural produce on commodity grown or produced by him or such goods as he is,; under any directive of Government or any law for the time being in force, under a duty or obligation to supply.
He holds any office of profit in the service of Pakistan other than the following offices, namely:--
(i) an office which is not whole time office remunerated either by salary or by i.e;
(ii) the office of Lumberdar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the Constitution or raising of a Force; or he has been convicted and sentenced to imprisonment for having absconded by a competent Court under any law f(?r the time being rn force; or ' (q) he has obtained a loan for an . Amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written OF; or '
(r) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months* at the time of filing his nomination papers; or
(s) he is for the- time being disqualified from being elected or chosen as a member of the Majlis- e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.
[(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, within thirty days from raising of such question refer the question to the Chief Election Commissioner.] [(3) Where a question is referred to the Chief Election Commissioner under clause (2), he shall lay such question before the Election Commission which shall give its decision thereon not later than three months from its receipt by the (. ' Chief Election Commissioner.]
15. A perusal of Article 62 reveals that some of the qualifications have been couched in the positive form and some in the negative, while Article 63 incorporates the disqualifications, for violation whereof in the post election scenario framers of the Constitution have prescribed remedial mechanism in Articles 63 (2) & (3) for members of the Assembly but not for the Presidential candidate, ln view whereof I am not persuaded by the submissions made at the Bar that Article 2 is a self-contained provision spelling out qualifications as well as disqualifications because the expression qualified to be used in Article 41(2) makes Articles 62 and 63 intertwined and interdependent thus ought to be read conjunctively. The contrary view would be paradoxical viz. Despite visitation of the disqualifications a member of the National Assembly is to be disqualified but a Presidential candidate remains immune from the same.
16. Before proceeding further it may be mentioned that the observations made by lis Court in this context in Qazi Hussain Ahmad's case (PLD 2002 SC 853) and Lawyers Forum's case (PLD 2005 SC 768) are per in curiam being only a passing reference without any ratio and misplaced reference out of the context, since the concerned provisions and scope thereof has not been dilated upon in addition to the fact that the view point expressed by some of the members of the Bench in Pir Sabir Shah's case (PLD 1995 SC 66) seems to have not been examined.
17. Having concluded that the disqualifications envisaged by Article. 63 are attracted with full vigour to a Presidential candidate, Article. 63(1 )(d)(k) whereof are crucial to the controversy in hand since the same renders a person presently in the service of Pakistan as Chief of the Army Staff being member of the Armed Forces and period of two years has not elapsed since he ceases to be so, ineligible for the residential contest read conjunctively with Articles 43(1), 243, 260, reading as under: -
43. ' (1) The President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.
243. (1) The Federal Government shall have control and command of the Armed Forces.
(1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President.]
(2) The President shall subject to law, have power-
(a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; [and]
(b) to grant Commissions in such Forces. , [(3) The President shall, [in consultation with the Prime Minister], appoint-
(a) the Chairman, Joint Chiefs of Staff Committee; Staff; (b) the Chief of the Army Staff; and (c) the Ch ief of the Naval ' (d) the Chief of the Air Staff, And shall also determine their salaries and allowances]
260. (1) ln the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say "service of Pakistan" means any service, cost or office . In * ' connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Maijd-e-Shoora (Parliament)] or of a Provincial Assembly, but does not include service as Speaker, Deputy .Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, [Advocate-General,] Parliamentary Secretary] or [Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to. The . Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister] or member of a Flouse or a Provincial Assembly;
18. A plain reading of the afore-quoted Articles in the preceding paragraph, leads to an irresistible, conclusion that the Respondent being the serving Chief of Army Staff, as a member of the Armed Forces, is in the Service of Pakistan cannot hold any other office of profit in the service of Pakistan carrying right to remuneration for rendering services, unless a period of 2 years has elapsed since the cease to hold that office.
19. Which situation is not amenable to salvage by banking upon the non obstinate clause deployed in clause 43(1) even in its widest possible connotation because it cannot conceivably embrace erosion, or nullification or mutilation or ruinate of the Constitution negating its very basic structure which ought to be read as an organic whole and mere pre-fixation of a non obstinate clause could not be construed so widely so as to eradicate even the specific provisions catering ground norm of the Constitutional fabric.
20. Ln the context of things, it is pertinent to mention that-the immunity from challenge perceived by Article 239(5) having been incorporated during General Zia- ul-Haq s military regime's amendments cannot travel beyond the fundamental structure of the Constitution. I may hasten to add that the sought for phenomenology is irreconcilable with the express provisions of Article 243 envisaging control and command of the Armed Forces subservient to the Federal Government including the Chief of Army Staff; otherwise it would be highly paradoxical that with the revival of the Constitution Chief of Army Staff despite being subordinate to the ' Federal Government enjoys supra command of the same.
21. Lastly examination of the President to Hold another Office Act VII of 2004, Section 2 whereof for the convenience of reference is reproduced hereunder: --
(2) Holder of another office- The holder of the office of the President of Pakistan may, in addition to this office, hold the office of the * Chief of the Army Staff which is hereby declared not to disqualify its holder as provided under paragraph (d) of clause (1) of Article 63 read with proviso to paragraph (b) of clause (7) of Article 41 of the Constitution of the Islamic Republic of Pakistan or any other law for the time being in force or any judgment of any Court or Tribunal: Provided that this provision shall be . Valid only for the present holder of the office of the President.
Reveals that it has been purportedly framed under the powers conferred by Article 63(1 )(d) prescribing disqualifications of a person to be a member of Parliament, if he holds an office of profit in the Service of Pakistan, other than an office declared by law not to disqualify its holder, which in fact seems to have been designed to exempt an existing office of profit in the Service of Pakistan, which otherwise renders the same to be disqualified on that count, but does not enable such a person to hold an additional office thus ostensibly seems to be a case of beyond the pale of Constitutional delegation; additionally, this Act cannot over-ride the Constitutional status of the Armed Forces as defined in the definition of Article 260, for which the remedy lies in amending the Constitution, which objective cannot be achieved through a subordinate delegated legislation.
22. Further, the holder of Presidential office perforce is required to perform certain political functions as well being Head of the State which would be incongruous with the Oath of Office of the Chief of Army Staff as a member of the Armed Forces set forth in IIIRD Schedule pursuant to Article 244: --
244. Every member of the Armed Forces shall make oath in the form set out . In the Third Schedule.
Oath for Members of the Armed Forces I, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law.
[May Allah Almighty help and guide me (Ameen).]
22. Consequently, in view of the fore-going I am of the considered opinion that President General Pervaiz Musharraf is not qualified to contest the ensuing Presidential Election.
Petition allowed.
As per Mr. Justice Rana Bhaqwands, J.
RANA BHAGWANDAS, J. - Af the conclusion of hearing, aforesaid Constitution petitions were dismissed by majority of six to three (Rana Bhagwandas, Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ. Dissenting) vide short order dated 28.9.2007, which reads 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 the 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 petitions are hereby dismissed as not maintainable."
2. Ln these direct Constitution petitions filed before this Court in terms .Of Article 184(3) of the Constitution, the petitioners, inter alia, have essentially challenged the holding of two offices of Chief of Army Staff as well as the President of Pakistan by the respondent since 21.6.2001 as violative of the Constitutional mandate.' Petitioners mainly seek a declaration from this Court that respondent General Pervez Musharraf (hereinafter referred to as the respondent) suffers from inherent pre-election disqualifications under the Constitution and is not eligible to be a candidate for and to be elected to the office of President of Pakistan by the out-going Assemblies. There is also a prayer to the effect that Qazi Hussain Ahmad v. Pervez Musharraf, Chief Executive-LD 2002 S.C. 853) and Pakistan Lawyers Forum -v. Federation of. Pakistan (PLD 2005. S.C. 719) are per-in curiam, at least, to the extent of interpretation of Article 63(1)(d)(e)(k) and (o) of the Constitution, and that "President to Hold Another Office Act" (VII of 2004) is ultra vires the Constitution and despite its validation through Seventeenth Amendment Act 2003 vide Article 270-AA of the Constitution, th& inherent disqualification qua the respondent to contest election for the office of the President remains intact.
3. Facts leading to the institution of these petitions need not be dilated upon in great details. Suffice it to mention that the Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff i.e. The respondent, on 12.10.1999, seized political power in Pakistan by dismissing elected Government of the then Prime Minister Mian Muhammad Nawaz Sharif placing him under house arrest on charges of interfering in the Armed Forces, politicizing the Army, destabilizing it and attempting to create dissension within its ranks. On 14.10.1999, respondent issued Proclamation of Emergency effective from 12.10.1999, whereby Constitution of Islamic Republic of Pakistan was held in abeyance and whole of Pakistan brought under the control of Armed Forces. This Proclamation was simultaneously followed by the Provisional Constitution Order No. 1 Of 1999 as amended, providing, inter alia, that notwithstanding' the abeyance of the provisions of the Constitution, Pakistan shall subject to this Order and any other Order made by the Chief Executive be governed as nearly as may be, in accordance with the Constitution, lt was further stipulated that, subject as aforesaid, all Courts already in existence shall continue to function and to exercise their respective powers and jurisdiction with the proviso that the Supreme Court, High Courts and any other Court shall not have the power to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority.
Fundamental rights, incorporated in Chapter I of Part-ll of the Constitution, not in conflict with the aforesaid Proclamation or any Order made thereunder from time to time shall continue to be in force.
4. On 31st December, 1999, respondent, as Chief Executive of Pakistan promulgated Oath of Office (Judges) Order, 1999, providing for an oath of office for a Judge of superior Court appointed after the commencement of this Order before entering upon his office before the authority specified in the Constitution and in the appropriate form set out in the Third Schedule to the Constitution. On 25th January, 2000, respondent, in his capacity as Chief Executive, promulgated Oath of Office (Judges) Order, 2000, providing for a first oath of Office to all the sitting Judges of the superior Courts within specified time with the consequence that a Judge who has made oath as required by these clauses shall be bound by the provisions of this Order, the Proclamation of Emergency dated 14.10.1999 and the Provisional Constitution Order No. .1 of 1999 as amended and, notwithstanding any judgment of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof. One of the satient features of the above Order would appear to be that a person holding office immediately before the commencement of the Order as a Judge of superior Court shall not continue to hold that office if he is not given, or does not make, oath in the form set out in the Schedule before the expiration of such time as the Chief Executive may determine.
5. Army take over and dismissal of elected Government was challenged by Syed Zafar AM Shah and others before this Court through a number of petitions, which were heard by the Full Court which vide judgment dated 12.5.2000 for the time being condoned the assumption of power by respondent on the doctrine of State Necessity. This Court condoned various actions taken and performed by the respondent, reserving the power of judicial review conferred on the superior Courts to determine the validity of any act or action of the Chief Executive in the light of the principles underlying the law of State Necessity, which shall remain intact and may be exercised as hereto before notwithstanding anything to the contrary contained in any legislative instrument enacted by the Chief Executive and/or any order issued by the Chief Executive or by any person or authority acting on his behalf, lt may not be out of context to observe that through this judgment, the respondent, as Chief Executive was held entitled to perform all such acts and promulgate all legislative measures, which are in accordance with or could-have been made under the 1973 Constitution, including the power to amend it, and to perform all acts, which tend to advance or promotethe good of the people. The Court expressly held that three years' period was allowed to the Chief Executive with effect from 12.10.1999 for achieving his declared objectives and that he shall appoint a day not tater than 90 days before the expiry of the aforesaid period of three years for holding of general elections to the National Assembly, the Provincial Assemblies and the Senate of Pakistan.
6. A review petition later filed against this judgment was dismissed vide judgment reported as Wasim Sajjad v. General Pervez Musharraf (PLD 2001 S.C. 233).
7. On 20.6.2001, the respondent, as Chief Executive of Pakistan, promulgated President's Succession Order, 2001 (CEO III of 2001), dislodging elected President Mr. Muhammad Rafique Tarar and on 2.6.2001 assumed the office of the President, in addition to his position as Chief Executive of the country, ln the backdrop of aforesaid scenario, respondent as Chief Executive and President of Pakistan, promulgated Chief Executive Order No. XII of 2002 on 19th April, 2002, commonly known as the "Referendum Order" providing for a referendum to be held on 30.4.2002, in which every citizen having attained the age of 18 years and possessing a National Identity Card was declared eligible to vote at the Referendum on the question whether he voted for continuation in office of General Pervez Musharraf as President of Pakistan for the next i.e years for achieving the objectives, continuity of local government system, strengthening of democracy, continuity and integration of the reforms, eradication of extremism and ethnicity and for accomplishment of the ideology of Founder of the Nation. The task of holding Referendum was assigned to the Election Commission of Pakistan.
8. On 21.8.2002, as Chief Executive of Pakistan, he promulgated- Legal Framework Order, 2002 (CEO No. XXIV of 2002), introducing as many as 29 amendments in the Constitution of Pakistan on the premise that it was necessary to provide for a smooth and orderly transition. LFO was amended by CEO No. XXIX of 2002 on 9.10.2002 and further amended vide CEO No. XXXII of 2002 on 26th October, 2002. Pursuant to the LFO, as amended, inter alia, seats in the National Assembly, the Provincial Assemblies and Senate were increased, seats in the Assemblies were reserved for women and non-Muslims and the age of voter was reduced from 21 to 18 years. General elections in the country were held on 10.10.2002. Consequent upon completion of election process, Members of the National Assembly took oath of office on 16th November, 2002. As a result of amendments in Article 41 of the Constitution through LFO 20O2; as amended, on the * same day respondent relinquished the office of Chief Executive and assumed the office of President of Pakistan. Subsequently, he secured a vote of confidence from the National Assembly as well as the Provincial Assemblies, affirming his oath of office as President. Senate of Pakistan was created after taking oath in March, 2003.
9. Vide notification dated 15.11.2002, by order of the Chief Executive, the Preamble, Articles 1 to 58, Articles ! 64 to 100, Articles 139 to 231, Articles 240 to 280, the Annexure and the Schedules to the Constitution were ' brought into force with effect from Sixteenth day of November, 2002, whereas, vide notification dated 22nd November, 2002, Articles 59 to 63 and Articles 232 to 239 were revived with effect from the day on which the Members elected to the Senate took oath. Articles 105 and 127 stood revived with effect from the day when the first Chief Minister took oath, Articles 101 to 104, Articles 106 to 126 and Articles 128 to 138 came into force on 25th November, 2002 and all the remaining provisions of the Constitution stood revived on 31st December, 2002.
10. Process of negotiations on Constitutional amendments and reforms took place between Muttahida Majlis-e-Amal and the ruling party whereby an .Agreement was arrived at between the parties on 24th December, 2003 whereby some of the amendments introduced in the Constitution through LFO, 2002, with slight modifications, were agreed to be inserted in the Constitution and a Constitution Amendment Bill was introduced and carried out in the National Assembly on 25th December, 2003, which was assented to by the President on 31st December, 2003.
This amendment commonly known as Constitution (Seventeenth Amendment) Act ,2003, inter alia, inserted a proviso to amended clause (7) of Article 41 of the Constitution to the effect that "provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from 31st day of December, 2004. Lt may not be out of place to mention that by inserting Article 270-AA through this Amendment Act, Proclamation of Emergency of 14th day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, Legal Framework Order and all other laws made between twelfth day of October, nineteen hundred ninety-nine and the day on which this Article came into force were declared to have been validly made by the competent authority and were not to be called into question in any Court or forum.
11. Lastly, Majlis-e-Shoora passed Act No. VII of 2004 to enable the President to Hold Another Office declared by law to be valid, in consonance with paragraph (d) of clause (1) of Article 63 of the Constitution, lt validated the holding of another office of profit. This Act received the assent of the President on 30th November, 2004 whereas it was made effective from 31st December, 2004.
12. Holding of referendum for election to the Office of the President, pursuant to "Referendum Order, 2002" was challenged by Qazi Hussain Ahmad and others before this Court through different petitions, which were disposed of by a larger Bench comprising nine Judges with the observation that it had been issued by the Chief Executive and the President of Pakistan in exercise of powers conferred upon. Him by this Court in Syed Zafar Ali Shah's case and that it does not have the effect of amending the Constitution. As regards challenge to the consequences flowing from holding of Referendum, this Court. Declined to go into these questions with the observation that the same shall be determined by a proper forum at the proper time. Likewise, vires of the Seventeenth Intendment in the Constitution were challenged before this Court by Pakistan Lawyers Forum and others through different petitions, which were dismissed by a Bench of i.e Judges on 13th April, 2005.
The judgment is reported as Pakistan Lawyers Forum V. Federation of Pakistan (PLD 2005 SC 719).
13. Petitions have been resisted by the respondent as well as the Federation of Pakistan on the premises, inter alia,. That these petitions are not maintainable before this Court within the contemplation of Article 184(3) of the Constitution; that the cases of Qazi Hussain Ahmad and Pakistan Lawyers Forum were rightly decided by this Court with due exercise of its jurisdiction; that respondent is lawfully authorized to hold both the offices of Chief of Army Staff as well as the President of Pakistan till 15th November, 2007; that he is Constitutionally entitled to contest for the office of the President in the forthcoming election and lastly that this Court should not exercise its discretionary jurisdiction in the matter of smooth transition of power to the elected representatives to emerge in pursuance of the general elections of the National as well as Provincial Assemblies.
14. M/s. Muhammad Alaam Sheikh, learned Sr. ASC, Hamid Khan, learned Sr. ASG, A. K. Dogar, learned ASC, Abdul Rehman Siddiqui, learned ASC and Mr. Jameel Ahmed Malik, in person, have addressed arguments in support of their respective petitions whereas Malik Muhammad Qayyum, learned Attorney General for Pakistan, assisted by a team of Deputy Attorney Generals and Syed Sharifuddin Pirzada, learned Sr, ASC assisted by other learned ASC have entered appearance on behalf of the respondents. M/s S. M. Zafar, learned Sr. ASC, Abdul Hafiz Pirzada, learned Sr. ASC and Chaudhry Aitzaz Ahsan, learned Sr. ASC were invited to assist this Court as amicus curiae on the questions of public importance raised in these petitions.
15. At the very outset, respondents have seriously contested the maintainability of these petitions, as, according to them, these petitions neither raise a question of public importance nor do they have any concern with the enforcement of any of the Fundamental Rights conferred by Chapter-1 of Part-ll of the Constitution. With due deference, we do not feel persuaded to agree with -the preliminary objection raised with regard to maintainability of these petitions. Admittedly, the questions raised in these petitions touch the vires of various laws, including Act VII of 2004 providing mandate to the respondent to hold two offices and to be exempt from disqualification apparently incurred on account of holding another office of profit and to contest elections despite the bar contained in Article 63(1) (d) & (s) read with Articles 43 and 244 of the Constitution as well as various provisions of the Pakistan Army Act, 1952 and the law of the land.
16. Furthermore, the whole nation and the people at large are interested in the democratic set up of the country and destiny of the nation as a result forthcoming elections for smooth transition of power from military rule to genuine democracy. The very fact that the issues raised with regard to the eligibility of the respondent to contest election to the office of the President of the Country, which is the highest office reflecting the unity of the Federation, raises important and serious questions of law justifying the invocation of original jurisdiction of this Court on the touch stone of the cases reported as [As a Jilani v. Government of the Punjab (PLD 1972 S.C. 139)], Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 S.C., 657), Benazir Bhutto v. Federation of Pakistan (PLD 1988 S.C. 416), Benazir Bhutto v. Federation of Pakistan (PLD 1989 S.C. 66), Federation of Pakistan v.
Muhammad Saifultah Khan (PLD 1989 S.C. 166), Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 S.C. 473), Sabir Shah v. Federation of Pakistan (PLD 1994 S.C. 738), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 S.C. 324) , Benazir Bhutto v. President of Pakistan (PLD 1998 S.C.
388), Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 S.C. 869), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 S.C. 583) and Wattan Party v.
Federation of Pakistan (PLD 2006 S.C. 697).
17. There is consensus of opinion on the point that to enjoy equal protection of law and to be treated in accordance with law is an inalienable right of every citizen. Likewise, equal treatment before law is basic fundamental right of every citizen, which is secured and guaranteed by Article 25 of the Constitution. Furthermore, if a law is enacted by Parliament, which is inconsistent with or in derogation of fundamental rights, to the extent of such inconsistency, shall be void and-when a citizen challenges the vires of such law, indeed he seeks to enforce the fundamental right guaranteed vide Article 8 of the Constitution. The concept of access to political justice has also been acknowledged and recognized by this. Court in Mian Muhammad Nawaz Sharif (supra)-.
Since the petitioners are seeking a declaration with regard to the ineligibility of the respondent to the office of the President while holding the office of Chief of Army Staff and since they as of right are interested in the development and flourishing of democratic institutions in a free, fair and transparent manner, with equal opportunity, it can hardly be said that the petitioners have not made out a case of enforcement of fundamental right as guaranteed under the Constitution, ln a democratic set up, the concept of fair, free and transparent elections can hardly be overemphasized and the petitioners, in law, are entitled to have equal opportunity to take part in the election process against the respondent, who has been placed at a highly advantageous and exalted position by reason of his office as Commander-in^Chief of the "Army, which is quite likely to provide him an edge over the petitioners, who happen to be the ordinary citizens, some of them being political leaders in the country. Petitioners' seeking right of access to political justice against the respondent before this Court in the exercise of its extraordinary original jurisdiction cannot be denied on hyper- technical grounds as it would be against the basic norms of justice, fair play, good conscience and doctrine of equality. There is no gain observing that by stretch of any reasoning, petitioners cannot be said to stand in a position similar to that of the respondent, who, according to them, commands mighty force and immense executive power of the Government by reason of his position as President as well as the Chief of Army Staff. By reason of assailing the eligibility and qualification of the respondent to run an election to the highest office of the President of Pakistan, indeed, the petitioners are not only seeking to enforce their right to have a level playing field but also highlight a genuine grievance amounting to gross violation and infringement of a fundamental right of equal treatment before the law and equal protection under the law, as guaranteed by the Constitution.
18. One of the petitioners i.e. Jamaat-e-lslami Pakistan being a well-known political party of the country is entitled to espouse the cause of public at large in general and more particularly of its members to struggle for the establishment, progress and development of democratic process in the country and to ensure that basic human rights as well as fundamental rights guaranteed under the Constitution are fully secured to the people of this country. Therefore, these petitions cannot be thrown out on the flimsy ground that they do not disclose a substantial cause for enforcement of a fundamental right.
19. Lt was canvassed on behalf of the respondents that indeed the questions raised in the set of petitions before this Court could be raised before the Chief Election Commissioner, who acts as Returning Officer at the time of scrutiny of nomination papers. We, however, do not find any satisfactory and -sound answer to the proposition that a Returning Officer in exercise of his limited scope of duties cannot lawfully declare the vires of a law as ultra vires the Constitution. Likewise, a Returning Officer at the stage of scrutiny of the nomination papers can only hold a summary enquiry, without going into deeper analysis of the grounds of disqualification against a candidate, lt can hardly be denied that pre-election disputes, touching the root of the matter. more particularly, in relation to the case of a very important person, no less than the Head of State, can always be raised by a citizen of Pakistan before announcement of the schedule for the elections without being a candidate in election, whereas, an objection as to disqualification of a candidate before the Returning Officer can only be pressed into service by a contesting candidate. No authority is needed for the proposition that a person interested in the result of the lis can always espouse a cause of general public importance on behalf on a large group of persons and the nation as a whole before the Superior Court and he cannot be denied fair access to justice on the technical ground that he does not have locus standi to raise a dispute of high magnitude, ln fact Constitution petitions against apprehended injury have been entertained by superior Courts and we have the precedent of Farzand Ali v. Province of West Pakistan (PLD 1970 S.C. 98 at page 111).
20. Learned Attorney General for Pakistan as well as learned counsel for the Federation relied upon Manzoor lllahi v. Federation of Pakistan (PLD 1975 S.C. 66), Zulfiqar Ali Babu v. Government of the Punjab (PLD 1997 S.C. 11), Watan Party v. Chief Executive/President (PLD 2003 S.C. 74), Javed Jabbar v. Federation of Pakistan (PLD 2003 S.C. 955), All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 S.C. 600), Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 S.C.
583) and Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) in support of their submission that this Court has declined to exercise its original jurisdiction in similar cases but we are least impressed by the submission as the cited precedents are clearly distinguishable on facts and circumstances out of which these cases arose.
21. ln Manzoor lllahi (supra), this Court declined to grant relief to the petitioner in the exercise of its jurisdiction under Article 184(3) of the Constitution on the premise that a Constitution petition under Article 199 for enforcement of his right under Article 9 of .The Constitution was already sub-judice before erstwhile High Court of Sindh and Baluchistan. Ln Zulfiqar Ali Babu (supra), petition under Article 184(3) was found to be not maintainable for the reason that rights sought to be enforced related to violation of Articles 7 & 32 of the Constitution, which do not fall in Chapter-I, Part-11 of the Constitution, containing fundamental rights, ln Watan Party (supra), relied upon by learned Attorney General, extraordinary relief in the exercise of original jurisdiction of this Court was declined on the premise that the petitioner failed to demonstrate that he had filed the petition bona i.e and that he had Jocus standi for raising the grievance, ln Javed Jabbar (supra), relief in terms of Article 184(3) of the Constitution was declined on the premise of lack of locus standi, which, in our considered view, does not lay down a correct law and can hardly be relied upon for the proposition canvassed on behalf of the respondent, ln All Pakistan Newspaper Society (supra), this Court did not entertain direct petition as the question of law raised by a group of newspaper managements did not affect the public at-large or the country as a whole, lt was held that a financial dispute between employers and employees would not give rise to a question of public importance within the meaning of the expression, ln Zulfiqar Mehdi (supra), petitioners were agitating the question of discrimination in the matter of nonpayment of back benefits to them by PIA in contradistinction to another group of employees, to which this right was extended. This Court, therefore, held that the issue raised concerned a limited number of employees and did not pose a question of public importance, ln Muhammad Shahbaz Sharif (supra), petition under Article 184(3) of the Constitution was entertained but the relief was denied for the reason that grievance raised was pre-mature and was individual in nature.
22. Conversely, consensus of the Courts throughout has been that where a petition raises a question of public importance with reference to enforcement of any of the fundamental rights incorporated in Part-1, Chapter-II ot the Constitution, this Court would be within its jurisdiction to pass appropriate orders, decrees and judgments. Such jurisdiction has also been exercised on a number of appropriate occasions in the exercise of authority of this Court, conferred under Article 187 of the Constitution.
23. Having decided the question of maintainability of these petitions in affinitive, we now adverb to the merits of the contentions raised by the parties respectively, lt may be observed that after notice to the respondents in the aforesaid petitions while noting the contentions raised by the parties, this Court had allowed an opportunity to the respondents to submit a concise statement but none was filed and the respondents' counsel chose to address the arguments without availing the right to i.e a concise statement in rebuttal of various questions raised by the petitioners, which may be summarized as under: --
(1) Whether the respondent is disqualified under Article 63(1 )(d) and (s) of the Constitution read with the provisions of Pakistan Army Act, 1952 and ESTA CODE 2000 from contesting election to the office of the President of Pakistan?
(2) Whether1 Act VII of 2004 was validly enacted by the Parliament and whether it excludes the case of the respondent from the disqualification clause contemplated by Article 63(1 )(d) and (s) of the Constitution?
(3) Whether respondent would only be governed by qualifications contained in Article 62 of the Constitution for election as Member of the National Assembly and whether disqualifications enumerated in Article 63 of the Constitution would not be attracted in the case of election to the office of the President?
(4) Whether the respondent being incumbent President of Pakistan is eligible to seek re- election to the office of the President for the third time in view of the bar contained in Article 44 (2) of the Constitution?
(5) Whether the existing Assemblies, whose term would expire on 15th November, 2007 are legally competent to elect the same person as President for the second time?
(6) What would be the legal effect and impact of revival/resurrection of Article 63(1 )(d) of the Constitution with effect from 31st December, 2004?
(7) Whether opinion rendered by M/s S, M. Zafar and Abdul Hafiz Pirzada, amici curiae, suggesting the continuity of system for transitional phase and allowing the respondent to take part in the Presidential election can be legally and Constitutionally entertained?
Questions Nos. 1 & 2
24. Lt has been contended on behalf of the petitioners that, in view of the qualifications for election to the office of the President incorporated in Article 41(2) of the Constitution, respondent is under heavy obligation to be eligible for being elected as Member of the National Assembly, which would automatically attract Articles 62 & 63 of the Constitution prescribing qualifications and disqualifications for election as Member of Majlis-e- Shoora (Parliament), lt has been vehemently urged that since the respondent is a sitting President and as such eligible for re-election to this office in terms of Article 44(2) of the Constitution, he must be a person qualified to be elected or chosen and not disqualified from being elected or chosen as a Member of Majlis- e-Shoora (Parliament). Now para (d) of clause (1) of Article 63 of the Constitution unequivocally lays down, that a person shall be disqualified from being elected or chosen as Member of the Parliament, if he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder. Admittedly, respondent, besides holding office of the President of Pakistan, continues to hold the office of . Chief of Army Staff, which is undeniably an office of profit , in the service of Pakistan within the definition clause of Article 260 of the Constitution. Now, in order to overcome this Constitutional handicap and accommodate the respondent, a dialogue was held with Muttahida Majlis-e-Amal on 24.12.2003 and an agreement arrived at. Consequently, Constitutional amendments introduced by the respondent through Legal Framework Order, 20O2,, as amended, were incorporated in the Constitution with certain modifications through XVIITH Amendment. As a result of such amendments, Article 41 was drastically amended by affirming clause (7) premodified through Legal Framework Order, 2002, insertion of clauses (8) & (9) and two provisos namely that paragraph (d) of clause (1) of Article 63 shall become operative on and from 31 st day of December, 2004 and that clauses (8) & (9) shall be valid for the forthcoming vote of confidence for the current ^term of the President in office. Clauses (7)(8) and (9) as affirmed and inserted in Article 41 of the Constitution may be reproduced for the sake of convenience:-- "(7) The Chief Executive of the Islamic . Republic of Pakistan-
(a) shall relinquish the office of Chief Executive on such day as he may determine in accordance with the judgment of the Supreme Court of Pakistan of the 12th May, 2000; and (b) having received the democratic mandate to serve the nation as President of Pakistan for a period of i.e years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of i.e years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly: Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31s day of December, 2004.
(8) Without prejudice to the provisions of clause (7), any member of members of a House of Majlis- e-Shoora (Parliament) or of a Provincial Assembly, individually or jointly, may, not later than thirty days from the commencement of the Constitution (Seventeenth Amendment) Act, 2003, move a resolution for vote of confidence for further affirmation of the President in office by majority of the members present and voting, by division or any other method as prescribed in the rules made by the Federal .Government under clause (9) , of the electro college consisting of members of both Houses of Majlis-e-Shoora (Parliament) and the Provincial Assemblies, in a special session of each House of Majlis-e- Shoora (Parliament) and of each Provincial Assembly summoned for the purpose, and the vote of confidence having been passed, the President, notwithstanding anything contained in the Constitution or judgment of any Court, shall be deemed to be elected to hold office for a term of i.e years under the Constitution, an the same shall not be called in question in any Court or forum on any ground whatsoever.
(9) Notwithstanding anything contained in the Constitution or any other law for the time being in force, the proceedings for the vote of confidence referred to in clause (8) shall be regulated and conducted by the Chief Election Commissioner in accordance with such procedure and the vote shall be counted in such manner as may be prescribed by the rules framed by the Federal Government: Provided that clauses (8) and (9) shall be valid only for the forthcoming vote of confidence for the current term of the President in office.".
25. Lt would, thus, appear that exemption and exception from disqualification for election to the office of the President and deviation from Constitutional procedure in respect of the respondent was acknowledged and accepted by the Majlis-e-Shoora (Parliament) in order to accommodate him for a single term and the same would' not be available for a second term. Furthermore, with the resurrection of Article 63(1 )(d) of the Constitution with effect from 31st day of December, 2004, though the respondent having committed with the nation in his public address as well as in the dialogue with the MMA was duty bound to shed OF his uniform as Chief of Army Staff by this day, yet he did not abide by his solemn undertaking and for the reasons best known to him, continues to hold such office of profit.
26. With a view to defeating the law and spirit of Article 63(1) (d) of the Constitution and to provide further protection to him, the Parliament, by simple majority, enacted the President to Hold Another Office Act (VII of. 2004), which received the assent of the President on 30th November, 2004 but was made effective from 31.12.2004. Lt may be observed that this Act, in its preamble, commences with the words "whereas paragraph (d) of clause (1) of Article 63 of the Constitution of the Islamic Republic of Pakistan provides for holding another office of profit in the service of Pakistan, if declared by law as such and; whereas it is expedient to make declaratory provision enabling the President to hold another office of profit in the service of Pakistan", lt may not be out of context to point out that the source or the foundation from which legislative sought its authority for enactment of this law, is referable to Article 63(1 )(d) of the Constitution, which in fact was in abeyance and actually dormant on the day this law was so enacted. If Article 63 (1) (d) was not alive on the day of legislation, irrespective of legal authority of the Parliament, it is hard to accept that law could be enacted with reference to a Constitutional provision which did not exist.
Furthermore, the language of para (d) of clause (1) of Article'63 provides for an office already declared by law not to disqualify its holder. Instead of declaring an office or a post as not an office of profit blanket coverage has been provided to the respondent, which law, on the face of it, appears to be not only arbitrarily enacted but also discriminatory and ultra-vires the Constitution.
27. Indeed the subject of law does not fall within any of the entries enumerated in the Federal Legislative List or Concurrent List incorporated in Fourth Schedule of the Constitution on which legislation can be made by the Parliament. This law allowing glaring and classic exemption to the respondent does not fall within the purview of "reasonable classification" based on intelligible diligentia, inasmuch as, blanket umbrella has been provided to an individual rather than the holders of such office in general. Moreover, it being "person specific", evidently offends the equality clause as enshrined in Articles 4 & 25 of the Constitution, which clearly defeats the intent and spirit of the Constitution. The impugned Act, on the face of it, is. Completely discriminatory as it does not meet the basic requirement of reasonable classification, within the contemplation of Article 25 of the Constitution, ln Government of Baluchistan v. Azizullah Memon (PLD 1993 S.C. 341), this Court, while laying down the principles and defining the scope and application of Article 25 of the Constitution ruled, inter alia, that in order to make a classification reasonable it should be based
(a) on a intelligible differentia, which distinguishes persons or things that are grouped together from those who have been left out; and (b) that the differentia must have rational nexus to the object sought to be achieved by such classification, lt would, thus, appear that one of the propositions is that equal protection of law means that no person or class of persons shall be denied the same protection of the law, which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property and in pursuit of happiness. We are strengthened in forming this opinion by the case decided as Jibendra Kishore v. Province of East Pakistan (PLD_1957 S.C. (Pak.) 9). The principle of law emerging from the aforesaid discussion symbolizes that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. Ln order to establish the supremacy of law, it has to be applied equally to persons similarly situated, ln the present case, we fail to see any indelible distinction in case of the respondent, who has been treated differently and exceptionally without making such opportunity available to other citizens of the country. Indeed, it destroys the object, intention and the spirit underlying the fundamental right guaranteed under Article 25 of the Constitution.
28. Lt may not be out of place to point out that by challenging the candidature of the respondent to contest election to the office of the President, petitioners are seeking to enforce their right to political justice, which has been fully recognized in Muhammad Nawaz Sharif (supra) through a Full Court judgment of this Court, ln the presence of Parliamentary democratic system designed by our Constitution, every citizen has a right to take part in political activities and to ensure that elections in the country are held in a free, fair and transparent manner, which can only be conceived of when equal opportunities are available to all the citizens possessing requisite qualifications, prescribed by law. Any right concerning from the concept of political justice being significant would be enforceable in terms of Article 17 of the Constitution, which is one of the fundamental rights contained in Chapter-I, Part-11 of the Constitution. Respondents, while raising the issue of incompetence of these petitions have utterly failed to satisfy the conscience of the Court that the petitions, though raising a very important and serious question of law, do not seek the enforcement of a fundamental right, as guaranteed under the Constitution. The very concept of a fundamental right is that it being a right guaranteed and secured under the Constitution cannot be taken away by law and it is not only technically inartistic but a fraud on the citizens, for the framers of law assured that the right is so fundamental that it cannot be taken away - even by an enactment, lt is also a basic principle of construction that a Constitution should receive a liberal interpretation in favour of the citizens, especially, with respect to those provisions wfiich were designed to safeguard the valuable right of access to justice, ln our view, after a detailed hearing for more than two weeks by a Larger Bench of this Court, it would neither be just, fair, proper nor lawful for this Court to knock down the petitioners on the premise that they should seek their remedy before the High Court under Article 199.
29. Lt was argued that the vires of this law were questioned before this Court in Pakistan Lawyers Forum versus Federation of Pakistan (PLD 2005 S.C. 719) and upheld as a good law but, as vehemently contended before this Court, | in our considered view, this case was not correctly decided and the observations made in the judgment and the conclusion drawn, in our considered opinion are per in curiam. To observe the least the judgment does not discuss the genesis of law and its legal and historical back ground and merely follows the ratio in Hussain Ahmad v. Pervez Musharraf (PLD 2002 S.C. .853), which again suffers from proper consideration of principles of law and lack of application of judicious mind.
30. Term "per in curiam" has been defined in Ballentine's Law Dictionary Third Edition at page 932 to mean, "through carelessness"; "through inadvertence"; "through lack of care". This expression has been & defined in Black's Law Dictionary 8th Edition at page 1175 to mean "wrongly decided, because the Judge or Judges were ill- informed about the applicable law.". Similar definition has been assigned to this expression in Jewatt's Dictionary of English Law Second Edition and Courier's Law Dictionary, ln 'Words and Phrases' First Edition by D. Varangian, the expression has been defined as under:- "A decision would be treated as given per in curiam when it is given in ignorance of terms of statute, or a rule having the force of law. An , order passed without reference to the relevant provisions of the Act and without any citation of authority is per in curiam (see Municipal Corporation of Delhi v. Gurnard Kaur (AIR 1989 S.C. 38). Ln the case of Punjab Land Development and Reclamation Corporation Ltd., v. Presiding Officer (1990) 77 FJR 17; (1990) 3 SCC 682, the Supreme Court explained the principle of per in curiam and held that the Latin expression per in curiam means through inadvertence. A decision can be said to be given per in curiam when a High Court has acted in ignorance of the decision of the Supreme Court".
Ln What an' s Law Lexicon the expression per in curiam has been defined as follows: "Per in curiam through want of care. An order of the Court Obviously made through some -mistake or under some misapprehension, is said to be made per in curiam."
31. Concept of judgment "per in curiam'' has been elaborately considered by this Court in Province of Punjab v. S. Muhammad Zafar Bukhari (PLD 1997 S.C. 351), Babu Parasu Kaikade v. Babu (AIR 2004 S.C. 754) and State v. Nasim ur Rehman (PLD 2005 S.C. 270). Lt was pointed out on behalf of the respondent that a review petition against the judgment in Pakistan Lawyers Forum (supra) is sub- judice before this Court. Nevertheless, we are firmly of the view that once a Court comes to the conclusion that a judgment is per in curiam, it must simply be ignored and need not necessarily be over-ruled or set aside. A judgment per in curiam having no binding force cannot be pressed into service for being followed, even by way of stare decisis. To our mind, pendency of a review petition does not abstain us from distinguishing the judgment or to make a deviation from the view already taken, which, to our understanding, suffers from lack of care and lack of application of law within the meaning of the expression.
32. There is another important aspect of the case. The expression 'law' by which an office may be declared as an office other than office of profit certainly and quite clearly refers to the Constitutional provisions rather than through ordinary legislation by Parliament. Had it not been so, the framers of the Constitution would not have provided for a class of holders of office of profit in the service of Pakistan in paragraph . (o) of clause (1) of Article 63 whereby Lumberdar, Qaumi Razakars and any office holder whereof liable to be called up for military training or military service under any law providing for the Constitution or raising of a Force have been excluded from disqualification otherwise applicable to persons in the service of Pakistan holding an office of profit.
As to the concept of law, by which an office or class of persons can be declared as an office other than the holder of an office of profit, we are fortified, in our view, by judgments reported as As a Jilani v. Government of Punjab (PLD 1972 S.C. 139) and Mahmood Khan Achakzai v. Federation Of Pakistan (PLD 1997 S.C. 426). We are in no manner of doubt that by applying the expression 'law', intention of the Constitution seems to be that exemption can only be made through an amendment in Constitution and not . By way of a sub-ordinate legislation passed by simple majority. The enactment of Act VII of 2004, in our view, does not cure the inherent disqualification in terms of Article 43 of the Constitution owing to holding another office of profit in the service of Pakistan carrying the right to remuneration for rendering of services.
33. Lt was submitted on behalf of the respondents that, while interpreting the Constitutional instruments and the law enacted by Parliament, this Court should always lean in favour of and draw a presumption of Constitutionality of law, ' which must be saved and harmonized rather than struck down and destroyed. There may be no cavil with the proposition of law that the Courts, ordinarily, lean in favour of Constitutionality of law and do not generally declare a law invalid merely because it is harsh or unreasonable, the fact remains that any law inconsistent with the provisions of the Constitution or repugnant to the spirit and object of the Constitution must yield to the will of the Constitution makers and such law must be< struck down in the exercise of jurisdiction by the superior Courts, who are not only obliged to do so but also under a solemn duty to perform such obligation under the Constitutional mandate. Indeed, legislative instrument heavily relied upon and pressed into service by the respondent can neither be sustained nor protected, as it does not fit in within the Constitutional parameters of legislation and within the sphere of duty and scope of authority of Parliament. We shall be failing in our duty in the field of dispensation of justice, if we leave a law unnoticed and unaltered when it does not coincide with the Constitutional machinery, from which Parliament itself derives its legislative power and authority.
34. Reliance by learned Attorney General for Pakistan on the cases reported as Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 S.C. 854), Fauji Foundation v. Federation of Pakistan (PLD 1983 S.C. 457), .
S.P. Mittal v. Union of India (AIR 1983 S.C. 1), L.M. Mishra Institute of E.D. And Social Change v. State Of Bihar (AIR 1988 S.C. 1136) and Multiline v. Ardeshir Cowasiee (PLD 1995 S.C. 423) in support of his submission that Act, VII of 2004 was a valid law, is misplaced, as we are firmly of the view that it does not conform to the parameters prescribed by Constitution for enactment of a legal instrument.
35. There is yet another aspect of the case. Assuming, without conceding, that the respondent may be entitled to hold two offices, as heavily pressed into service on his behalf, one cannot loose sight of the fact that as Chief of Army Staff and a Member of Armed Forces, he is under an oath by virtue of Article 244 of the Constitution not to engage himself in political activities, whatsoever, and that he will honestly and faithfully serve Pakistan in the Pakistan Army as required by law and under the law. Now a question arises that being at the helm of affairs of Pakistan Army, that the respondent lawfully and Constitutionally take active part in political activities by holding meetings, making public addresses, attending political party meetings, political functions and freely mixing up with the politicians within and beyond the country as a part of election campaign. Simple answer would be in the negative because if an Army Officer, while, in service, indulges in political activities, he not .Only violates the oath of office but also acts in flagrant violation of the Army Act, 1952 and the Army Officers Service Regulations, ln terms of Article 243(1) of the Constitution, Federal Government shall have, control and command of the Armed Forces whereas under Article 243(1-A), without prejudice to the generality of Article 243(l) of the Constitution, the Supreme Command of the Armed Forces shall vest in the President. On the other hand, Prime Minister is Constitutionally the Chief Executive and the holder of executive power of the Federal Government by reason of being elected representative of the people while the Armed Forces shall serve under the control and command of the Federal Government, lt would be anomalous and irreconcilable with the provision of oath of office taken by the respondent that he as the Head of Armed Forces, may be lawfully allowed to take pali in active politics and rather run for election to the exalted office of the President.
36. Lt may not be out of context to note that oath of office is prescribed under the Constitution for the President, Prime Minister, Federal Ministers, Speaker of the National Assembly, Chairman Senate, Deputy Speaker National Assembly, Deputy Chairman Senate, Members of National Assembly, Members Senate, Governors of the Provinces, Chief Ministers, Provincial Ministers, Speakers of the Provincial Assemblies, Members of Provincial Assemblies, Auditor General of Pakistan, Chief Justice of Pakistan, Chief Justice of a High Court, Judges of Supreme Court & High Courts, Chief Justice and Judges of Federal Shariat Court and Chief Election Commissioner not being in the service of Pakistan but holders of Constitutional office. Only exception in the Constitution is about the Members of Armed Forces, every Member whereof is required to take oath of allegiance to serve Pakistan and Pakistan Army, Pakistan Navy. And Air Force (as the case may be) whereas no such oath is prescribed for other civil servants. Likewise, ESTACODE framed by the Federal Government prohibits all civil servants and persons in service of Pakistan from taking part in politics and they are completely debarred from discussing politics in offices, clubs and restaurants, ln case argument of the respondent is accepted that Article 63 is not applicable to election to the office of President, can it be said that a civil servant, fulfilling the conditions of Article 62 would also be eligible to contest election to a representative office. If no other person in the service of Pakistan holding an office of profit is entitled to contest the election, in law, same principle and parameters would apply to the case of the respondent, who has chosen to continue as Chief of Army Staff beyond the target date i.e. 31.12.2004 without any lawful and Constitutional justification.
37. There is another well-established principle of law that the holder of a Constitutional office cannot hold another office under the Constitution. Admittedly Chief of Army Staff is a Constitutional position envisaged by Article 244 of the Constitution with oath of allegiance to Pakistan and virtually uphold the Constitution in the prescribed form in third Schedule of the Constitution.
Likewise, office of the President is a Constitutional office as envisaged by Articles 41 to 49 of the Constitution. Verily, respondent enjoying the office of Chief of Army Staff and also holding the office of President of Pakistan having not given up the office of Chief of Army Staff as solemnly committed by him with the Members of Majlis-e-Shoora (Parliament) as well as the nation on electronic media was provided with a blanket umbrella to hold both the offices through Constitution (Seventeenth Amendment) Act, 2003 up to 31st December, 2004. He, nevertheless, continues to hold both offices till this day and is contesting for another term of office retaining the office of Chief of Army Staff. The issue of holding two Constitutional positions simultaneously, was considered by this Court in Abrar Hassan v. Government of Pakistan (PLD 1976 S.C. 315). The facts precisely were that a permanent Judge of this Court was notified and appointed as Chief Justice of the Sindh High Court with direction that he shall hold lien against his office in the Supreme Court Notification of appointment as Chief Justice of Sindh High Court and also holding lien against the office of Judge of this. Court was challenged through a writ of Quo Warrantor before the Sindh & Baluchistan High Court, which failed on technical grounds. Ln appeal, this Court, while disapproving the appointment of same person against two Constitutional offices, expressed the view that on assumption of another office, the incumbent is deemed to have vacated the earlier office, lt was authoritatively held that no person can hold two substantive offices at one-and the same time, ln the present case, since the respondent continues to be the Chief of Army Staff, he is not only disqualified from holding the office of the President but also not eligible to run for election to the office of the President for another term, as it would certainly defeat and destroy the object and mandate of the Constitution. ln view of , what has been discussed hereinabove, we answer questions Nos. 1 & 2 against the respondent.
Question No. 3:
38. Article 41(2) of the Constitution mandates that a person shall not be qualified for election as President unless he is a Muslim not less than forty-i.e years of age and is qualified to be elected as Member of the National Assembly: lt would, thus, be seen that a candidate, in order to qualify to be elected as President, should not only be a Muslim, not below the age of forty-i.e years but also possess requisite qualifications for being elected or chosen as Member of the National Assembly, no Article 62 prescribes the qualifications for membership of Majlis-e- Shoora (Parliament), that run from clauses (a) to (i). Likewise Article 63 of the Constitution lays down disqualifications of a candidate for membership of Majlis-e- Shoora (Parliament) and contains as many as 19 clauses, lt has been strenuously contended on behalf of the respondent that since by reason of Article 41(2) of the Constitution, he is only required to qualify as Member of the National Assembly, various kinds of disqualifications debarring a person from being elected or chosen as and from being a Member of the National Assembly would hot arise for election to the office of the President. Argument on the face of it, though ingenious, does not appeal to reason and mind. We do not find any substance in the submission. If a person possesses necessary attributes enumerated in Article 62 of the Constitution, he would be, prima facie, qualified to contest for election to the seat of National Assembly but the reason, logic and rationale demand that primarily and essentially he at the same time should be immune and completely free from disqualifications expressly incorporated in Article 63 of the Constitution, ln case we ignore and exclude the disqualification clauses of Article 63 of the Constitution in respect of a candidate and only confine to the attributes possessed by him in terms of Article 62, it would be mutually destructive and paradoxical which would cleanly run counter to the intention of the framers of the Constitution.
39. On behalf of the respondent, reliance is placed on the judgment in Qazi Hussain Ahmed v.
General Musharraf, Chief Executive (PLD 2002 S.C. 853). This was a case in which petitioner had essentially . Challenged "Referendum Order 2002", under which the respondent was seeking indirect election to the office of President of Pakistan while acting as Chief Executive of Pakistan after military take over, promulgation of Proclamation of Emergency and Provisional Constitution Order (No. 1 of 1999). Ln the reported case an argument was raised that the respondent, while holding the office of Chief Executive and exercising the powers of Prime Minister of Pakistan could not at the same time seek election to the office of the President as a consequence of the Referendum to be held on 30.4.2002. This Court did not examine the vires of the Referendum Order since the said Order had not been issued under the Constitution, which in fact had been issued under the Proclamation of Emergency and Provisional Constitution Order (No. 1 of 1999). Ln this context, an-argument was advanced that under Article 62 of the Constitution, which contains qualifications for being elected as a Member of the National Assembly, which are also the qualifications for election to the office of the President, it was observed by this Court that disqualifications cannot be read into Article 41(2) of the Constitution, lt was observed that the said Article only provided that the President must be a person qualified to be elected as Member of the National Assembly and by way of obiter further observed that the disqualifications listed in Article 63 cannot be read into Article 41(2) in view of the judgment of this Court in Aftab Shaaban Mirani v.
President of Pakistan (1998 SCMR 1863), which upheld the judgment of the Lahore High Court in the case reported as Muhammad Rafique Tarrar v. Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). This Court went on to add that the same view was also expressed in Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD'1995 Lahore 541).
40. The case of Aftab Shaaban Mirani (supra) arose PLD 1995 S.C. 66).
41. Article 63(1 )(p) before being amended through Legal Framework Order, 2002 was to the effect that a person shall be disqualified from being elected or chosen as a Member of the Majlis-e- Shoora (Parliament) if he is for the time being-disqualified from being elected or chosen as Member of Majlis-e-Shoora (Parliament) or a Provincial Assembly under any law for the time being in force. This paragraph is now contained in amended Article 63(1 )(s) and is to the same effect.
Interpreting this paragraph in Sabir Shah case (supra), it was held as unders. Lt will be noticed that according to the title as also according to the opening part of Article 62, paragraphs (a) to (h) all provide for qualifications; yet according to the proviso, what paragraphs (d) and (e) contain are disqualifications. Leamed counsel for the respondents suggested that as the proviso treats paragraphs (d) and (e) only as- containing disqualifications, they alone should be so treated. I should think that the use of the* word 'qualification' in the title, the words 'shall not be qualified' in the opening part and the use of the word 'disqualification' in the proviso rather suggest that it is not the label of 'qualification' or 'disqualification' that truly describes the substance of the provision.
Articles 62 and 63 read together show, and in my opinion so clearly, that they run into each other.- For instance, it is qualification to be a citizen of Pakistan. Obviously, it is disqualification not to be a citizen of Pakistan. This is brought into sharp relief by Articles 88 and 89 of the Constitution of Sri Lanka Article . 88 thereof says: "Every person shall, unless disqualified as hereinafter provided, be qualified to be an elector at the election of the President and of the Members of Parliament or to vote at any Referendum: Provided that no such person shall be entitled to vote unless his name is entered in the appropriate register of electors"; And Article 89 provides: "No person shall be qualified to be an elector at an election of the President, or of the Members of Parliament or to vote at any Referendum, if he is subject to any of the following disqualifications namely -
(a) if he is not a citizen of Sri Lanka.
39. To me, there appears no intractability in the language of paragraph (p) of clause (1) of Article 63, read with the opening part thereof. Rather, it makes complete sense, lt means what it says if a person is disqualified from being elected or chosen as a member "under any law for the time being in force", then he shall be disqualified also from being a member. The provisions of Article 62 are certainly 'law' within the meaning of paragraph (p) of clause (1) of Article 63. Thus, a person, who is not qualified under Article 62 or by any other valid law that the Parliament may make, to be elected or chosen as a member, shall also be disqualified from being a member."
Para 38 and para 39 of the judgment reproduced above, being majority judgment, in our considered opinion, finally clinch the issue and can be safely relied upon for the proposition that the qualifications and disqualifications though not interchangeable yet are interlinked, interdependent, run into each other and must be read together, ln fact these are the two facets of same coin. Any attempt to isolate one from other would certainly lead to unconscionable consequences, absurdities and defeat the spirit of law and intention of the framers of the Constitution.
42. Learned Attorney General, while arguing that the qualifications prescribed in Article 62 and disqualifications incorporated in Article 63 of the Constitution are independent of each other,, neither, interchangeable nor interdependent, he is of the view that since Article 41(2) only speaks of a person's eligibility to be elected or chosen as a Member of the National Assembly only qualifications prescribed by law would be attracted' and not the disqualifications. Learned counsel pressed into service Shahidullah Qazi \r. Additional Commissioner (PLD_1969~ Dacca 868) and Ghulam Abbas v. Additional Commissioner,, Khairpur (PLD 1965 (W.P.) Karachi 625) in support of the submission that want of qualification would not be tantamount to disqualification. We have examined both the cases from Dacca and Sindh jurisdiction, which essentially related to the interpretation of the provisions of Electoral College Act in relation to the age of a voter. Both the cases are absolutely distinct and distinguishable on facts. We are, therefore, firmly of the view that these precedents do not advance the case of the respondent.
43. There is another aspect of the case. Respondents were fully aware of and alive to the situation that the provisions of Article 63 would, with all force, be attracted in the case of election to the office of the President. Lt was in this backdrop and with definite knowledge of law that, while drafting Constitution (Seventeenth Amendment) Act 2003, after clause (7) paragraph (b) of Article 41 following proviso was added "Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st day of December, 2004."
Not only the respondent but also Members of Majlis-e- Shoora by two thirds majority felt it absolutely necessary to revive this para with effect from 31st December, 2004 and to provide a blanket cover to the respondent till the cut off day by which day he had solemnly committed with the Members of the Majlis-e-Shoora in particular and the nation in general that be would abandon the office of Chief of Army Staff but continue as the President of Pakistan after having assumed the office of President through Referendum and vote of confidence from Parliament and the Provincial Assemblies, lt is evident that since the respondent could not keep up his solemn committent, it was found necessary to enact the "President to hold Another Office Act 2004" on a particular day, when Article 63(1) (d) was held-in abeyance, lt was keeping in view the command of the proviso to Article 41(7)(b) and the proviso to Article 63(1) (d) of the Constitution that the Parliament was persuaded to enact a law enabling the respondent to hold another office in addition to the Constitutional office already held by him. Ln case clause (1)(d) of Article 63 was not attracted to election for the office of President there was no occasion to resurrect and revive this Article with effect from 31.12.2004 and to exempt the respondent from the purview of disqualification incurred by him by reason of holding the office of Chief of Army Staff.
44. The question with regard to qualifications and disqualifications in the perspective of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1972 came up for consideration before a Full Bench of Azad Jammu and Kashmir High Court in Muhammad Yousuf v. Azad Government (PLD 2001 Azad J&K 60), in which the view taken was that the worlds "qualifications" and "disqualifications" had been separately mentioned in the Constitution as well as in the election law. A person, who was disqualified would mean that due to lack of some quality or virtue, he was not entitled to a particular privilege, or right,. But that would$F)ot mean that he was not qualified.
Terms qualification in disqualification were so interwoven that those were interchangeable as a person who was not qualified stood disqualified and a disqualified person was not qualified. Even if a person was knowledgeable, qualified and having all the virtues of worldly affairs, he could be debarred if he did not fulfill particular criteria, which the legislature deemed fit for a 'particular job or institution. The view expressed by AJ&K High Court is fully attracted in the circumstances of the case and is in consonance with the spirit of law and the Constitutional mandate, lt would, thus, be seen that the contention that a candidate for election to the office of President is only required to be qualified under Article 62 and not to account for disqualifications envisaged by Article 63 would only lead to violence on the statute.
45. There is another important development in the matter. During the pendency of these petitions, in which eligibility of the respondent to contest for Presidential election was vehemently questioned the Chief Election Commissioner of Pakistan was persuaded by the Federation to amend Presidential Election Rules, 1988 in exercise of the powers conferred upon him by paragraph 22 of the Second Schedule to the Constitution with the approval of the.. President, ln terms of Para 1 of the Second Schedule to the Constitution, Chief Election Commissioner has been authorized to hold and conduct election to the office of the President and he shall be the Returning Officer for such election. Vide paragraph 22 of the Second Schedule, the Chief Election Commissioner may, by public notification with the approval of the President make Rules for carrying out the purposes of this Schedule. Accordingly, vide SRO 1089 (l)/88, dated 3.12.1988, Chief Election Commissioner, with the approval of the President, has notified the Rules, 1988 in the Gazette of Pakistan, Extraordinary, Part-ll dated 3rd December, 1988. Rule 5 of the Rules, inter alia, deals with the scrutiny of nomination papers received from the candidates or their authorized agents. Sub-rule 3 stipulates / as under:~ "(3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary inquiry as he may think, fit and reject any nomination paper if he is satisfied that -
(a) the candidate is not qualified under the Constitution to be elected as President, or is subject to disqualification from being elected as and from be in a member of. The National Assembly;".
46. Surprisingly clause (a) of sub-rule (3) of Rule 5 of the Rules, 1988 was drastically amended by Chief Election Commissioner vide SRO 913(1 )/2007, dated 10th September, 2007, substituting the aforesaid clause as under:-- "the candidate is not qualified under the Constitution to be elected as President;".
47. Undeniably, this omission and deletion concerning disqualification was done with unfair intention in order to save the respondent from the apparent and obvious disqualification attached to him from being elected as a Member of the National Assembly. Again this amendment, though notified in the Gazette on 10th September, 2007, was made public on 17th September, 2007 and broadcast and telecast on electronic media the same day when a larger Bench of this Court commenced hearing of these petitions from day to day. Learned counsel for petitioner-lmran Khan in Constitutional Petition No. 61 of 2007 was, therefore, constrained to move C.M.A. No. 2598 of 2007 praying for implement of Chief Election Commissioner as respondent with a view to challenge the aforesaid amendment in the Presidential Election Rules 1988 but this Court unanimously . Declined to allow impalement of Chief Election Commissioner as respondent to the petition reserving the right to examine the vires and legal impact of the belated attempt to undo, modify and amend a sub-Constitutional Rule, which could only be made after due deliberations and consultation with all those interested in the Presidential election. Be that as it may, we do not approve of the aforesaid amendment and the subtle manner in which it was effected during the pendency of these petitions only a few days before the announcement of the Schedule for Presidential election.
These circumstances fully support and strengthen our view that the disqualifications prescribed by Article 63 of the Constitution would be definitely attracted to the election process for the office of the President.
Question No. 3 is answered accordingly.
Question No.4:
48. Apart from seriously assailing the eligibility of the respondent to be elected to the office of the President on various legal and Constitutional grounds by reason of disqualification, as discussed above, petitioners have questioned the candidature of the respondent for re-election to the office of the President in view of bar contained in Article AA{2) of the Constitution, lt may be observe*d that as per the language used in Article 44(1) of the Constitution, subject to the. Constitution, the President shall hold office for a term of i.e years from the day he enters upon his office. Clause (2) of Article 44, commands that, subject to the Constitution, a person holding office as President shall be eligible for re-election to that office, but no person shall hold that office for more than two consecutive terms, lt may be observed that after military take over on 12th October, 1999, the respondent assumed the office of Chief Executive of Pakistan after dislodging the elected Prime Minister, his Government as well as dismissing the National Assembly and four Provincial Assemblies in the country. By virtue of Provisional Constitutional Order No. 1 of 1999, he continued to administer the affairs of State by exercising the powers of the Prime Minister and let the former duly elected President continue. However, with effect from 21.6.2001, after dislodging the elected President through President's Succession Order 2001, he assumed the office of President in addition to his position as Chief Executive. Of the country. He enjoyed this term till the assumption of office as President on 16th November, 20O2, as a result of promulgation of Legal Framework Order, 2002 after amending Article 41 of the Constitution and obtaining a vote of confidence from both Houses as well as Provincial Assemblies, deviating from the Constitutional procedure for election of the President. His first term, expiring on 15th November, 20O2, however, was not under the. Constitution while the second term of office as President apparency commenced in terms of clause (1) of Article 44 of the Constitution.
49. Ln the backdrop of above legal position, intention of the framers of the Constitution would be manifestly obvious that a person having, enjoyed the office of President for consecutive two terms under the Constitution shall not be entitled to contest for the same office there- after, ln our considered view, the respondent though enjoyed the office of President for two terms and his second term of office is expiring on 15th November, 2007, strictly speaking, he would not be ineligible for contesting election to the said office for forthcoming election as the first term of office as President by way of supra Constitutional measure cannot be declared as a term of office under the Constitution. On merits, however, we have already held that he is not eligible to be elected as President in the light of letter and spirit of the Constitution, which, in our opinion, cannot be overlooked. The question is answered accordingly.
Question No. 5:
50. Lt has been strenuously urged and vehemently argued that the present Electoral College for election to the office of the President, inter alia, consisting of National Assembly and four Provincial Assemblies, is coming to an end/and its term expiring on or about 15th November, 2007, therefore, the existing Assemblies are not legally, Constitutionally and conventionally competent to elect the same person as President for another term. We earnestly feel, there appears to be enough substance and force in the submission of the petitioners, as outgoing Assemblies cannot be allowed to bind the successor Assemblies to be elected as a result of popular mandate.
Furthermore, Members of the present Electoral College, who have already expressed their opinion by exercising a vote of confidence immediately after their assumption of office, may not be in a position to exercise their right of franchise freely and independently. They, would naturally be influenced and swa yed by their earlier decision. Since the term of office of the President as well as the present National Assembly expires simultaneously on 15th November, 2007, it would be in the fitness of things and in consonance with the democratic norms and intention of the framers of the Constitution if the new Assemblies and the Electoral College are allowed to exercise their right to elect a President of their choice during the term of Electoral College under the Constitution. An exceptional situation, which can be conceived may be where the incumbent President, before expiration of his term of office, is removed from his office on the ground of physical or mental incapacity; is impeached on a charge of violating the Constitution or gross misconduct; resignation or death when the office of the President falls vacant, the existing Electoral College would be Constitutionally authorized to elect another President for the Un-expired term of office.
Indeed, the respondent was fully alive to this situation, therefore, while promulgating Legal Framework Order, 2002, vide Chief Executive Order No. 34 of 2002, he introduced meaningful amendments in Article 224 of the Constitution, providing for time of election and bye- election.
While the original text provided that a general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately "preceding" the day on which the term, of Assembly is due to expire, the expression "preceding" was intentionally substituted by the term "following". This amendment was intentionally and deliberately made with a view to make a room for seeking election to the office of the President from the outgoing Assemblies in conformity with clause (4) of Article 41 of the. Constitution stipulating that election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office. The draftsmanship and ingenuity of those who suggested the above-said amendment in the Constitutional provisions can only cause dismay and be looked upon with son-own and grief. Legal team of the respondent and his set up had clearly foreseen this eventuality while introducing drastic amendments in the Constitution in 2002, which were later got ratified by two- thirds majority of the Members of the National Assembly as a result of a solemn understanding that amendments were inevitable and absolutely essential to the transition of power from the military administration to the civilian set up. Since the purpose and object of the amendments never saw the light of the day, it is hard to appreciate the ground realities providing the forum of present Electoral College for election of same person to the office of the President for another term for which new Assemblies have to be elected as a result of popular vote based upon election manifestos of various political parties, lt may further be observed that the President being an integral part of the Parliament, it would be quite inconceivable and unusual that the Parliament with whom a President has to work in total cordiality and harmony should not be elected, by such Parliament. At the cost of repetition, it may further be noted that a Parliament having outlived its tenure should not be allowed to bind the successor Parliament with its choice as it is well-settled that a Parliament may do anything but bind the .Successor Parliament. The present Parliament having outlived its life, in our view, does not have a democratic mandate of the people to elect the same person as President for another term of i.e years, which would militate against the well- entrenched principles of democratic values. The question is answered accordingly in negative.
Question No. 6:
51. The background and legislative history of Article 63(1) (d) of the Constitution has been discussed in detail while answering earlier' questions, lt would be seen that our examination and analysis of law leads to the conclusion that Article 63(1 )(d) of the Constitution would be' very clearly attracted to the candidature of the respondent for election to the office of the President and he is required by law to come up to the standards of qualifications vide Article 62 and freedom from disqualifications arising under Article 63. Incorporation of this particular para of disqualifying clause in Article, . 41(7Xb) unequivocally manifests the intention of the legislature that after its revival with effect from 31st day of December, 2004 immunity granted to the respondent under me Constitutional Amendment would not extend to him beyond the cut OF date. Indeed, he has to demonstrate before this Court as well as the Election Commission of Pakistan that he is fully qualified and eligible to contest election to the office of the President while holding another office of profit, lt was in this backdrop that even before the announcement of election schedule, Chief Election Commissioner was prompted and motivated to delete this clause from the Presidential Election Rules, 1988 vide Gazette Notification (Extraordinary) dated 10th September, 2007 reproduced earlier. As a necessary corollary, there can be no second opinion and irresistible conclusion is that the respondent stands disqualified from contesting the Presidential election as called into question through these petitions.
Question No. 7:
52. Amongst the learned Senior Counsel requested to assist as Amici curiae in these Constitutional petitions of great importance and significance, while Mr. S. M. Zafar elaborately dealt with the philosophy of legal jurisprudence and advocated in favour of ongoing election process in the .Larger interest of smooth and peaceful transition of power from military administration to democratic set up with the bona i.e desire that the respondent may be directed to shed OF his uniform before seeking election to the office of the President, Syed Sharifuddin Pirzada, learned Sr.
ASC for the respondent is on record having placed a statement on record on behalf of the respondent that, if elected as President, respondent would give up his uniform before taking the oath of office as President for the second term. Be that as it may, the wishful desire of Mr. S. M. Zafar, learned Sr, ASC, who actively participated on behalf of the ruling party in the dialogue with the Muttahida Majlis-e-Amal in December, 2003 and fully reflected in his publication captioned "Dialogue" First Edition 2004 does not appear to be forthcoming. Learned counsel strategically avoided to express his opinion on the merits of the case as regards the competence, eligibility and qualification of the respondent in the perspective of Articles 41,43, 44 and 63 of the Constitution and left it to the judgment of this Court.
53. On his part, Mr. Abdul Hafiz Pirzada, learned Sh ASC took pains to persuade the Court to strengthen the system, stabilize the present set up and dismiss these petitions in order to permit smooth transition of power from military set up to democratic forces, ln this connection a reference was made to Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 S.C. 166), in which despite the finding that Full Court with majority opinion, declared the order of dissolution of Muhammad Khan Junejo's Government as invalid and ultra vires the Constitution declined to restore the elected Government as well as the Assemblies. We are clear in our mind that the submission of learned counsel, if accepted, would only result in reviving and perpetuating the doctrine of necessity, which must be buried for all times to come.
54. Withholding of discretion in Haji Saifullah case was reviewed in Mian Muhammad Nawaz Sharifs case (supra) and Dr. Nasim Hassan Shah, C.J. {as his Lordship then was) publicly regretted that the relief was wrongly declined in earlier case. This course of action does not lay down good law and does not have any .Binding force and persuasive\le value. Once a superior Court comes to the conclusion that an order is invalid and ultra vires, it is legally bound to extend the relief due. We earnestly feel that this county no longer can afford the luxury of resorting to circumvent the law arid the Constitutional mandate by upholding and unfuming the draconian doctrine of necessity resorted to earlier. Even otherwise, on merits it may be observed that, the continuation of the respondent at the helm of the affairs with mutilated Constitution concentrating overwhelming powers in the President would not fulfill the desired object as canvassed by learned amicus curiae being contrary to the dictates of the law. Indeed, the Judges of this Court are under oath to uphold, preserve and defend the Constitution of Pakistan, which must be strictly adhered to in letter and spirit Without any fear or favour, affection or ill-will." Suspicions and apprehensions in the minds of people about future scenario would not resolve the complex problems being faced by this Country and the only salvation of the nation lies in stabilizing the institutions of the State strictly in accordance with the provisions of the Constitution rather than to keep them under Military Rulers thumb. Any endeavour to continue and affirm the present system of governance, which has transformed Parliamentary system of government into Presidential form of Government is bound to damage the dignity, respect and honour of the citizens of this country in the. Comity of nations and bring a bad name to it, which can hardly be appreciated. Independence of judiciary, stability of democratic system, regular conduct of general election process, allowing the Institutions to serve freely within the sphere of their -scope and without involvement of the Armed Forces would always be in the supreme interest of the nation. Needless to emphasize,- frequent military interventions and destabilizing elected Governments have always given rise to indiscipline, ^ disorder, . Conflict of interest, inflation, unemployment,' massive corruption, intolerance and extremism in the country, which must be eradicated and eliminated with iron hand and strength in accordance with law.
54A. Before parting with this judgment, it may be observed that Chador Aitzaz Ahsan, learned Sr.
ASC appearing as amicus curiae fully supported the case of the petitioners by his valuable arguments backed by propositions of law and the provisions of the Constitution as well as legal instruments.
55. We express our sense of gratitude to the learned amici curiae as well as learned counsel for the parties and the Attorney General for Pakistan for. Assisting this Court in arriving at a just and fair conclusion.
57. For the aforesaid facts, circumstances and reasons these petitions are allowed and respondent declared to be disqualified to contest for Presidential election. Constitution Petition No. 63 of 2007, Professor Dr. Anwarul Haq versus General Pervez Musharraf is disallowed to the extent of seeking permission to participate in the forthcoming elections to the office of the President.
As per Mr. Justice Sardar Muhammad Raza Khan. J.
SARDAR MUHAMMAD RAZA KHAN, J. ~ I have gone through the judgment handed down by my learned brother Rana Bhagwandas, J., being reasons for the short order dated 28th September, 2007, whereby we had held, while dissenting with majority view, that the petitions are maintainable under Article 184 (3) of the Constitution and hence accepted in totality. I agree with the reasoning adhered to in the judgment aforesaid but would like to dilate upon the view taken by l^j;, Abdul Hafiz Pirzada, learned amicus curiae.
58. He did not controvert the merits of the case. His placing reliance upon Haji Saifullah's case (PLD 1968 SC 166) was tantamount to saying that even if the petitioners have a good case on merits, it would not be in the fitness of the things to issue writ in their favour, as it would, most likely impede smooth transition from uniform rule to the rule of pure democracy. The stance so taken is nothing but reiterating .The import of doctrine of state necessity, altogether forgetting that the favour did not work in the past. The transition provided only a reinvigorating space for a new Uniform rule, bringing the Nation back again and again to the zero point the marvel of doctrine of necessity.
59. Doctrine of necessity is neither Law nor any rule nor regulation, lt is a state of affairs where, in the given circumstances, unfair is justified in the name of expediency. Most of philosophers, scholars and pseudo-intellectuals in the west have been floating various ideas from time to time sparking debates the world over. Genuine things are adopted and promoted in the developed countries while underdeveloped are duped into the fantasies of in-genuine, which unfortunately are followed as sacred commandments. Later category include Hans Kelson's doctrine of state necessity and Machiavelli's "Prince"; cherished in the' underdeveloped like Pakistan despite being damagingly hypocritical. The theories are by no means universally accepted nor do they form basis of modern jurisprudence. Borrowing words from Hamoodur Rehman, C.J. (as his lordship then was); he, while criticizing Muhammad Munir,. C.J. Said that the latter "not only misapplied the doctrine of Hans Kelsen but also fell into error that it was a generally accepted doctrine of modern jurisprudence. . Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone "
60. What irks my mind- most is not primarily the genuineness or otherwise of these draconian ideas of Kelsen or Machiavelli but whether or not we the Muslims have any, legacy to follow or to refute or defy the evil ideologies though dead in the civilized countries yet flourishing in the third world. I firmly believe and hold that we the Muslims must seek ultimate guidance from the ultimate wisdom of revealed .Knowledge-The Holy Qur'an.
61. A book that has to last fo*r all times should always avoid minor details and must always lay down the principles, lt is essentially true about the Holy Qur'an. Before that we seek guidance from the Book, it is necessary to ' comprehend as to what the doctrine of necessity or those of Machiavelli are. Briefly, those propound that truth and falsehood, permissible and impermissible have no such frontiers that, cannot, under any circumstances, be violated.
If expediency demands, .Impermissible 'can be made permissible regardless of good conduct, principles or values of life. Means are justified by the ends achieved. On the other hand Holy Qur'an lays down certain restrictions on the conduct of man, which cannot be changed or violated. Any deviation therefrom is a negation (The commands of your nourisher are complete with truth and justice. No person can bring about any change whatsoever in them.)
62! Doctrine of necessity is a man made enigma, which must always be subservient to the greater human values, ordained by Almighty Allah. Certain commandments, are directed towards individuals, the negation whereof ultimately affects the whole society. When truth is ordained and falsehood condemned, it. Is imperatively laid down that "do not confound truth by overlaying it with falsehood nor knowingly conceal the truth."
Almighty Allah Itas denounced even the mixing up of truth with falsehood, leaving no room for expediency. More explicit is the verdict in surah Al-Nisa where extremely strong . And impulsive expediencies are shunned altogether in comparison to the. Greater values of truth and justice, lt says, "Believers! Be upholders of justice and bearers of witness to truth for the sake of Allah, even though it may be against yourselves or against your parents and kinsmen or the rich or the poor, for, Allah is more concerned with their well-being than you are. Do not, then, follow your own desires lest you keep away from justice. .If you twist or turn away from the truth, know that Allah is well a ware of all that you do." (Al- Nisa 4/135 'in*" .........
63. Let us have a glance through a few other injunctions where deviation from truth for the sake of expediency is condemned. "Believers! Be upright bearers of witness for Allah and do not let the enmity of any people move you to deviate from Justice. Act justly that is nearer to God-fearing. And fear Allah. Surely, Allah is well aware of what you do." '
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64. One has, to restrict only to a few references from the Holy book, owing to the shortage of time, otherwise, one can write volumes on the subject that Qur'an has defied expediency in comparison to the truth, lt is nothing but worst kind of hypocrisy, which has been the way of life of the nations who were eliminated and replaced by nations who followed the Divihe. Verdict. Duality of Conduct has been the hallmark of condemned people. Time is witness-to it. History of mankind bears witness to it and the truth thereof is evident from Surah Al-Asr- (103), wherein the non-righteous are declared to be in a state of loss, ln brief, every word of Qur'an abhors falsehood, hypocrisy, duality of character,, duality of conduct, expediency, and thus, the doctrine of necessity. Seen -in the larger and. Wider perspective and applied to the entire society, the doctrine of necessity becomes one of State necessity. Whatever be the canvas, whether individual or collective, the doctrine is destructive either way. Rather, at State level, it is devastating for the entire nation. Who should know it better than us.
65. Duality of conduct is always attributed to falsehood. Truthful never vasculated. Mingling of truth and falsehood is a negation of Divine Verdict. I, at this juncture, cannot avoid referring to a very apt quotation of Allam Iqbal, whose deep insight into the Holy Qur'an is evident from his poetry. - {{ URDU TEXT MISS }} Idolatry has, in the present day, multifarious manifestations. Ideologies, doctrines, theories and hypothesis are invented' tailored and banked upon to please humans, at the cost of displeasing the Almighty. Quid pro quo is followed and maintained which may be relevant to politics but cannot, in the circumstances, be pressed into Service in judicial matters while imparting justice, lt is high time to follow Greater Values of life rather than the expedient. We should avoid being accused of. {{ URDU TEXT MISS }}
66. For what has been dilated upon, though short to encompass the subject, I hold that the doctrine of necessity is violative of Quranic injunctions and withholding of decision on merits, in order to .Achieve smooth transition in the interest of State necessity, would neither be just, nor fair nor legal. The petitions being maintainable are hereby accepted, pursuant to our short order dated 28th September 2007.