' IJAZ AHMED CHAUDHRY, J.---By way of this constitutional petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, Muhammad Khan Junejo, petitioner, seeks leave to appeal against the judgment dated 9-5-2013 passed by a full Bench of the High Court of Sindh at Karachi in a Constitutional Petition No,1682 of 2013 whereby the said petition filed by Mir Khan Khoso calling in question legality of the order dated 17-4-2013 passed by the learned Election Tribunal upholding the order of the Returning Officer accepting nomination papers of the petitioner to contest election from PS-81-Sanghar-IV, was allowed disqualifying him to contest the election from the aforesaid constituency.
2. Briefly the facts, relevant for the disposal of the petition, are that the petitioner filed his nomination papers to contest the General Election on 11-5-2013 from PS-81-Sanghar-IV which were accepted by the Returning Officer/respondent No,3 vide order dated 1-4-2013 whereafter respondent No,5 filed certain objections against the candidature of the petitioner on 3-4-2013 which were not considered by the Returning Officer on the ground that the nomination papers of the petitioner have been accepted on 1-4-2013. However, feeling aggrieved by the aforesaid order of the Returning Officer, respondent No,5 filed election Appeal No,5 of 2013 before the Election Tribunal (High Court of Sindh at Karachi) under section 14(5) of the Representation of the People Act 1976 which stood dismissed by the said Tribunal vide order dated 17-4-2013. Still feeling dissatisfied with the aforesaid order of the election Tribunal, respondent No, 5 called in question the legality of the order dated 17-4-2013 by filing the Constitutional Petition bearing C.P. No,1682 of 2013 before the High Court of Sindh at Karachi and the Full Bench of the said Court through impugned order dated 9-5-2013 while reversing the findings of the learned election Tribunal allowed the aforesaid constitutional petition declaring the petitioner to be disqualified to contest the election but at the same time the Full Bench of the High Court of Sindh on an application filed by the petitioner suspended, the operation of the impugned judgment for a period of 7 days i,e, uptill 16- 5-2013 vide a separate order of the same day provisionally allowing him to contest the General Election on 11-5-2013. The petitioner contested the election pursuant to the aforesaid order and was declared as a returned candidate. However, petitioner challenged the aforesaid judgment dated 9-5-2013 through the instant petition.
3. Learned counsel for the petitioner contends that the learned Full Bench of the High Court of Sindh while passing the impugned order fell into an error by setting aside well-reasoned order dated 17- 4-2013 passed by the learned Election Tribunal as it has failed to give any cogent reasons that the findings arrived at by the learned Election Tribunal are illegal, arbitrary, without lawful authority and jurisdiction; that the learned Full Bench of the High Court of Sindh has erred in law by relying upon the unreported order dated 1-4-2.013 passed by this Court in C.As. Nos, 191-L and 409 of 2010 as the said order is not applicable to the facts and circumstances of the instant case; that the learned Full Bench of the High Court of Sindh wrongly relied upon the judgment of the Balochistan High Court in the case of Obaidullah v. Mir Muhammad All Rindh and others (PLD 2012 Balochistan 1) as the fact and circumstances of that case are entirely distinguishable from the case in hand and illegally held that the bar under Article 62(1)(d) of the Constitution of Islamic Republic of Pakistan, 1973 is not time related but perpetual, as such, the petitioner's previously disqualification could not be applied in perpetuity to bar the petitioner to contest future election; that the petitioner was previously disqualified on the basis of the decisions of the Election Tribunal and this Court, as such, disqualification on the basis of previous decisions would amount to double jeopardy which is against the true spirit of the Constitution; that. The petitioner neither submitted any false information nor made any misstatement at the time of submission of nomination papers and no such allegation was levelled against the petitioner by respondent No,5, as such, the petitioner was duly qualified to contest the general ,Election 2013 in which he was declared as a returned candidate after poll; that there is no conviction or a declaration by a Court of law that the petitioner is not sagacious, righteous or ameen, thus, the bar contained in Article 62(1)(f) of the Constitution does not apply in the case of the petitioner; that since the petitioner was not declared either by the Election Tribunal or by this Court in the year 2004 to be not qualified or disqualified in violation of Article 62 or Article 63 of the Constitution of Islamic Republic of Pakistan 1973 as at that time the petitioner was, on the nomination day in 2002, was found to be not qualified to contest the election only for want of academic qualification in terms of section 99(1)(cc) of the Representation of People Act 1976, therefore, he could not have been disqualified to contest the election in the year 2013 in view of the repeal of section 99(1)(cc) of the Representation of People Act 1976 (Act No,III of 2009) which ceased to have effect from 21-4-2008; that according to law a candidate can only become ineligible under Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 if he does not meet any of the condition under the aforesaid provision of law on the day of filing his nomination papers but since there was no declaration under Article 62(1)(f) at the relevant time, therefore, the learned Full Bench of the High Court of Sindh was not at all competent to declare the petitioner ineligible to contest the election 2013; that the disqualification of the petitioner in the year 2002 on account of not fulfilling the requirement of a graduate degree under section 99(1)(cc) of the Representation of People Act, 1976 being no longer requirement under the law, the previous disqualification of the petitioner cannot be treated disqualification for the elections held in 2013.
4. We have heard the learned counsel for the petitioner and have also perused the record, relevant law and the case-law on the subject.
5. The moon point to be determined in this case is that as to whether in view of the conduct of the petitioner, does he fulfil the criteria of qualification mentioned in Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 qualified to be elected or chosen as a member of Majlis-e- Shoora or disqualified from being elected or chose as Member of the Majlis-e-Shoora as per Article 63 of the Islamic Republic of Pakistan, 1973. In order to better appreciate this point both the aforesaid Articles are reproduced below for facility of reference : - [62. Qualifications for, membership of Majlis-e-Shoora (Parliament).
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-five 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, 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) Disqualifications for membership of Majlis-e-Shoora (Parliament).
(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 un-discharged 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 by 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
(t) being a citizen of Pakistan by virtue of section 14B 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, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years unless a period of five years has elapsed since his release; or
(i) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or
(j) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or
(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has controlling share or interest, unless a period of two years has elapsed since he ceased to be in. Such service: or
(1) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five 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 five 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 for 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 co-operative 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, 1984 (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 no share or interest; or Explanation - In this Article "goods" does not include agricultural produce or 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.
(o) 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 fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, if liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or
(p) 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 the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.
(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."
' The background of the case of the petitioner reveals that on imposition of the condition of being graduate to contest the election in the year 2002 through section 99(1), he managed a false and forged degree of B.A. To contest election in the year 2002. After obtaining the said fake B.A. Degree he filed nomination papers attaching therewith the aforesaid fake degree for contesting election from N.A. 236-Sanghar-III and was duly elected therein. The election of petitioner in the year 2002 was challenged and set aside on the ground that he made false statements and submitted forged documents with his nomination papers for the said election, as such, his candidature being hit by the provisions of section 99 of the Representation of the People Act 1976, his election was declared void upto this court which is reported as Muhammad Khan Junejo v. Fida Hussain Dero and others (PLD 2004 SC 452) wherein this Court has held as under:- "15. The record is indicative of the fact that the appellant did his best to get the proceedings prolonged for an indefinite period enabling him to complete his tenure under the garb of different proceedings initiated before different forums by exploiting different legal provisions which cannot be appreciated. The appellant at first instance filed writ petition and subsequently made different applications to get it adjourned on the plea that matter was pending before Election Tribunal which too was not allowed to proceed expeditiously and transfer application of election petition Was moved and subsequently the appellant refused to appear before the learned Election Tribunal. Besides that the appellant met the Governor and a High Powered Committee was constituted at the request of appellant to determine the authenticity and genuineness of the degree in question but amazingly the appellant attempted to get the proceedings of High Powered Committee stopped on flimsy grounds.
' Since as per conclusions drawn by this Court in the case reported supra that the petitioner knowingly and deliberately submitted fake and forged degree for becoming a parliamentarian, therefore, had not only committed an offence by submitting forged and fake documents but also defrauded the voters and the nation, as such, was disqualified to contest the election for not fulfilling the conditions of Article 62(1)(d) and (I). This Court in the case of Malik lqbal Ahmad Langrial v. Jamshaid Alam and others (PLD 2013 SC 179) held that whoever makes false declaration at the time of filing of nomination papers makes himself liable to be disqualified from being elected or chosen as member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly for making misstatement or concealment of facts and also exposes himself to criminal proceedings contemplated under sections 193, 196, 198 and 199 of the Pakistan Penal Code. In this view of the matter, it is crystal clear as light of the day that a person who makes a misstatement or submits forged documents in order to defraud and cheat the voters and the nation cannot be elected or chosen to be the member of the Parliament, as such, the petitioner was rightly disqualified to be elected as member of the Parliament by the High Court of Sindh.
5(sic) As far as, the contention of the learned counsel for the petitioner that the bar from contesting election would apply only for a period of five years and such bar cannot apply for perpetuity is concerned, suffice it to observe that once there is a disqualification it is A always disqualification as held by this Court in an unreported order in the case of Mian Najib-ud-Din Owaisi v. Amir Yar Waran passed in Civil Appeals Nos,191-L and 409 of 2010 (PLD 2013 SC 482), as- such, the contention of the learned counsel for the petitioner that the bar, under Article 62(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 is time related and not perpetual has no force at all as the learned counsel for the petitioner has failed to satisfy us to hold otherwise that the bar under the aforesaid Article is not time related but perpetual.
6. As far as the contention of learned counsel for the petitioner that previous disqualification on the basis of decision of Election Tribunal as well as this Court now would amount to double jeopardy which is not permissible under the Constitution is concerned, it is observed that as stated above the disqualification of the petitioner was perpetual and not time related, therefore, the contention of the learned counsel for the petitioner is repelled having no force at all.
7. There is no doubt that the petitioner had submitted fake and bogus documents in order to become a Member of the Parliament, as such, he has not only played a fraud on the electors of his constituency but he has also cheated the Returning Officer to believe him to be graduate on the basis of fake and forged documents and such a person cannot be trusted to lead the nation as a legislature. The petitioner failed to meet the criteria set out for proposed candidates under Article 62(d)(f) of the Constitution and subsections (d)(e)(f) and (g) of section 99(1) of the.
Representation of People Act 1976, as such, the learned Full Bench of the High Court of Sindh has rightly accepted the writ petition and rejected his nomination papeRs, In view of the facts and circumstances of the case and the material available on record we hold that the findings of the learned High Court are based on correct appreciation of evidence on record and the law on subject, as such, said court has committed no illegality or material irregularity while passing the impugned order. However, the order passed by the learned full Bench of the High Court of Sindh on the same day separately on the application of the petitioner to provisionally allow him to contest the election is neither justified nor warranted under the circumstances of the case as the court after passing the impugned judgment had become functuous officio and could not have passed such an order. It is very strange that the 1earned High Court on the one hand has declared him disqualified to contest election and on the other hand is allowing him to contest the election an provisional basis.
8. For what has been discussed above, we find no merit in this petition which is hereby dismissed and leave is refused. As a sequel to the aforesaid findings, we direct the Election Commission of Pakistan to hold the elections afresh in PS-81-Sanghar-IV on the basis of nomination papers already submitted by the candidates for contesting election in the said constituency.