' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners call in question the order dated 24-9-1990 of the learned Election Tribunal dismissing his appeal filed against the order dated 17-9-1990 whereby the learned Returning Officer N.A.95, Lahore VI while rejecting objections of the petitioners accepted nomination papers of respondent No.1-Mian Muhammad Nawaz Sharif.
2. Facts of the case in brevity are that the petitioners sought rejection of the nomination papers of respondent No.1 Mian Muhammad Nawaz Sharif, who was a candidate from Constituency NA-95 Lahore for the seat of Member National Assembly of Pakistan, in general elections held in the year 1990 by raising inter alia following allegations:-- "The contents of charges (of which a copy has been despatched to NS) amply show that NS is not a fit and proper person and is not qualified to be elected to NA; for he is not of a good moral character; he is notorious for flouting orders of Islam; personally is ignorant of the teachings of Islam being murid of Allama Tahir Qadree and a premee of Zia, the latter was a MUSHRIK, See Goraya's Islam Main Swabbed (Ferozsons 1990) who called himself Hakam-Alla and who committed treason, Art 6); NS is not Amin; is a hypocrite; is not a man of his words; collected a coterie of rabidly alcoholic ministers around him and he has worked against the Constitution of Pakistan (See Art 6) by promoting dictatorship. He is unfit to rule over Pakistanis. He has indulged in Amanat Mein Khayanat".
3. Respondent No.1 denied all the aforesaid allegations leveled by the petitioners by filing a reply.
The Returning Officer rejected the objections vide impugned order dated 17-9-1990. The petitioners filed an appeal against the aforesaid order before the Election Tribunal consisting of three Hon'ble Judges of this Court which was dismissed vide order dated 24-9-1990. Hence, this Constitutional petition.
4. Learned counsel for the petitioners, in the first instance, was asked to explain the efficacy of the instant writ petition and address arguments on its maintainability.
5. Learned counsel for the petitioners vociferously argued that he had filed this petition in the year 1990 and it has been pending since then for no fault on part of the petitioners or their counsel. If the Court has not decided the same in time they cannot be held responsible for that and should not be made to suffer due to an act of the Court. Had the writ petition been decided within time, the matter would have reached its logical end. Learned counsel further vehemently contends that the respondent suffers from an irrevocable, irreversible threshold pre-candidacy disqualification which is a recurring cause. He further submits that the respondent is not "Sadiq and Amin" but is an incorrigible Khayyen, a usurper as well as a nebulous and irremediable liar. Learned counsel further added that the Returning Officer had grossly erred in law in assuming that as a pre-requisite for disqualification under Articles 62 and 63 of the Constitution a person must have been found guilty of corrupt or illegal practices by some court under any law for the time being, whereas, there is commonality of knowledge concerning respondent No.1 as corrupt and Khayyen amongst the public at large. He next contended that respondent No. L is ineligible for all times to qualify for candidature and of entering into an election for the membership of National Assembly; that since the profile of an MNA being the member of the Parliament ranks high in the, realm 2nd protects the interest, of the entire country, the allegations leveled against him should not be brushed aside merely for the reason that the Assembly in question was dissolved; that respondent No.2 while rejecting objections of the petitioners did not take into account all relevant considerations and utterly failed to appreciate the intent, policy and spirit of the law; while performing the role of quasi judicial officer, the learned Returning Officer was obliged to take notice of Islamic Sharia Law as well as statute law particularly the interpretation of Article 62 of the Constitution; that Returning Officer proceeded fancifully and in a perfunctory manner while assuming that respondent No.1 was not found guilty; that election tribunal while passing the impugned order also did not give due weightage to the press clippings which per se assume the status of evidence. The news items appearing in the national paper, especially when the allegations contained therein go unrefined, should not be taken out of consideration.
6. We have heard the arguments advanced by the learned counsel for the petitioners and gone through the record.
7. Undoubtedly, it is an ugly aspect of the matter that the instant writ petition is pending since 1990 but a careful perusal of the order sheets would show that there has been a substantial role on part of the petitioners' Counsel for causing delay in disposal of the matter. The writ petition was entertained by this Court on 21-10-1990 and the following order was passed:- "21-10-1990 Mr. Muhammad Jawaid lqbal Jafree of Slarpore.
' Learned counsel wants to. Recast the writ petition, which is apparently replete with mistakes. He states that he shall do the needful within three days. To be refixed after the mistakes etc are removed from the petition.
' Sd/- Judge"
8. Learned counsel took more than five months for recasting writ petition. Subsection (6) of section 14 of the Representation of the People Act, 1976 stipulates that if an appeal is not decided within a specified time as provided in subsection (5), it shall be deemed to have been rejected. Keeping in view the above provisions of law it is manifest that election matters are to be adjudicated at the earliest therefore, the time of five months taken by the learned counsel for recasting the writ petition had rendered it in fructuous at that juncture.
9. Then the matter was taken up on 27-3-1991 along with C.M.No.1342/1991 when the following order was passed:-- "C.M.No.1342/1991 ' 27-3-1991: Mr. Muhammad Javed lqbal Jafree Advocate.
' It appears appropriate that before this application is considered, the statement of the learned counsel under whose signature it has been filed, be recorded. Sd/- (M. Mahboob Ahmad)
Chief Justice Sd/- Sd/- (Raja Afrasiab Khan) (Tanveer Ahmad Khan)
Judge Judge Sd/- Sd/- (Ihsan-ul-Haq Chaudary) (Malik Muhammad Qayyum)
Judge Judge ' Presence as before.
' The statement has been recorded. The contents of the application prima facie constituted contempt of this Court. Issue notice to Mr. Javed Iqbal Jafree Advocate to show-cause why he should not be proceeded against for having committed contempt of court by filing this application.
Let this matter of contempt be listed on 14-4-1991.
2. No matter regarding these contempt proceedings shall he published in any manner except with the leave of the Court.
' MAIN CASE ' The learned counsel is not prepared with the case and seeks adjournment so as to fully study the case law on the subject. In D the interest of justice, this case is adjourned to 20-4-1991.
Sd/- (M. Mahboob Ahmad)
Chief Justice Sd/- Sd/- (Raja Afrasiab Khan) (Tanveer Ahmad Khan)
Judge Judge Sd/- Sd/- (Ihsan-ul-Haq Chaudary) (Malik Muhammad Qayyum)
Judge Judge
10. Case was then fixed on 29-6-1991 when the following order was passed:- "29-6-1991: Mr. Muhammad Javed lqbal Jafrec Advocate. Arguments have been heard for sometime. The learned counsel wants to further prepare the case. Adjourned. Date in Office.
Sd/- (M. Mahboob Ahmad)
Chief Justice Sd/- Sd/- (Raja Afrasiab Khan) (Sajjad Ahmad Sipra)
Judge Judge Sd/- Sd/- (Tanveer Ahmad Khan) (Malik Muahmmad Qayyum)
Judge Judge
11. The petitioner moved C.M. No.1368-92 which was fixed on 13-5-1992 before the Hon'ble Chief Justice, who was pleased to pass the following order:- "13-5-1992. Mr. Mohammad Iqbal Jafree of Slarpore, Adv.
' Two of the learned Members of the Bench (Raja Afrasiab Khan, J. And Tanveer Ahmad Khan, J.) are not available at the Principal Seat. The learned counsel states that he would be satisfied if an order is made that the case should be listed when all the Members of the Bench are available at the Principal Sea.
Sd/- (M. Mahboob Ahmad)
Chief Justice
12. Thereafter, the case was neither fixed in routine nor did the petitioners make any effort to get it fixed uptil 30-5-1996 while in the meantime the Assembly of 1990 was dissolved in July, 1993. Even now after a lapse of more than twenty five years, the learned counsel for the petitioners was not inclined to obtain a decision for the writ petition and was striving to get a long adjournment which, was not allowed. A review of the above facts shows that the learned counsel for the petitioners cannot blame this Court for not deciding the matter within time, rather the delay in disposal of this matter is attributable to him. The above conduct of the learned counsel for the petitioners may also be examined in the perspective that during the course of arguments he asserted that respondent No.1 had offered him appointment as the Ambassador of Pakistan to France and a two kanal residential plot at Lahore, but he claims to have desired for his posting as High Commissioner of Pakistan in the U.K. Instead in which, case he would not prosecute this matter. This fact tends to show that for his personal interest the learned counsel has been intentionally delaying the matter until now. However, fact of the matter is that the instant writ petition was time bound which lost its efficacy the moment the National Assembly elected in the election of 1990 was dissolved and the respondent ceased to remain a member thereof.
13. Undisputedly, the instant writ petition has arisen out of the general election held in the year 1990 and the National Assembly which came into existence as a consequence thereof has been dissolved on 18-7-1993, therefore, it would be a mere academic exercise to adjudicate upon this petition as the Respondent No.1, does not presently hold elected office of MNA of the National Assembly of 1990. It is an established practice of the Courts that legal proceedings are not undertaken merely for academic purposes unless there are admitted or proven facts to resolve the controversy. Reliance is placed on Full Bench judgment of the Hon'ble Supreme Court of Pakistan in the case of Dr.Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265).
The contention of the learned counsel that it is a recurring cause is not tenable for the reason that after the election in question four further general elections were held which were duly contested by respondent No.1 and the petitioners had every opportunity to raise as many objections as they could and also question his eligibility before the relevant forums but there is nothing on the record to show that the petitioners have undertaken this exercise at the relevant times. After the eIection in question, respondent No.1 has again been elected as Prime Minister of Pakistan twice. It is a well established rule that an election petition abates by the fact that the National Assembly has dissolved while the petition was pending. It may be mentioned here that when the Constitution of the Islamic Republic of Pakistan, 1962 was abrogated, all the appeals relating to election disputes were pending before the Hon'ble Supreme Court of Pakistan against the writ petitions decided by the High Courts. The legality and maintainability of the pendency of appeals were examined by the Apex Court in the case reported as Abdul Humid v. Muhammad Shahidullah and 3 others (PLD 1969 Supreme Court 535) wherein it was held as under:- "It is common knowledge, that according to the old practice the petition abated or dropped in such a case. Keating, J. Was of the same opinion, for, he too held that "the effect of the dissolution, as it seems to me, is to cause the petition to drop." It is clear, therefore, that the moment the dissolution takes place the petition is at an end for all purposes. These principles are, in our view, applicable with equal force in the present case. The National Assembly having itself been dissolved by the Proclamation of the 25th March, 1969, the position, in our opinion, is the same and all pending petitions must be dropped as having become infructuous."
' Seeking guidance from the above esteemed judgment, it is held that the cause of action to the petitioners stood extinguished with the dissolution of the National Assembly which came into existence as a consequence of General Elections held in the year 1990 as such this petition has virtually become infructuous and is liable to be dismissed on this score alone.
14. There is a further important aspect of this case. Not only was the respondent No.1 Mian Muhammad Nawaz Sharif repeatedly elected to the parliament in elections that followed he was again elected as an MNA in the recent elections held in May, 2013. We have not been informed of any challenge thrown to the latest election of respondent No.1 as an MNA.
15. The petitioners have assailed candidature of respondent No.1 raising allegations against him of corruption, swindling public money and dishonesty etc. The allegations leveled by the petitioners require a considerable degree of inquiry by a Court or Tribunal of competent jurisdiction in which the respondent may also propound his defence which is his legal right and produce evidence to disprove the allegations against him and this exercise obviously cannot be undertaken by this Court in its Constitutional jurisdiction. To declare a person corrupt, dishonest, not being sagacious, righteous, Amin and non-profligate, fraud and a cheat is a blot on his character entailing legal and social consequences and repercussions and the same cannot even be assumed without there being adjudication made by a Court of competent jurisdiction to hold him so. Constitutional jurisdiction of this Court cannot be invoked as a matter of right course or routine, rather it is subject to certain circumventions which the Court is required to keep in view while exercising extraordinary discretionary powers. (See Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 Supreme Court 1066). In this context we are also enlightened by the observations of Hon'ble Supreme Court of Pakistan in case The Presiding Officer v. Sadruddin Ansari and another (PLD 1967 SC 569) wherein it has been held as under:-- "Ordinarily the Court in exercise of its writ jurisdiction would decline to interfere in cases of election, because, it is desirable that the decision on a matter of disputed elections should as soon as possible become final and conclusive. But this is not the only reason. Another valid reason for so declining to interfere is because by so doing it would involve itself into a field of investigation which is more appropriate for a tribunal rather than for a Court exercising the prerogative power.
The fact, therefore, that an alternative remedy is provided by law should not only upon the above principles but upon general principles too disincline a Court to invoke its extraordinary jurisdiction in a case where such a remedy is still available".
16. The impugned order was passed by the tribunal in exercise of the powers under section 14 of the Act ibid which was of summary nature and cannot be considered as final adjudication of the matter with regard to eligibility or otherwise of respondent No. 1.
' In view of the above discussion this writ petition is dismissed as IN having been rendered infructuous as well as not maintainable.
' C.M.Nos. 1-01, 2-08,3787-09,3635-09,1935-10, 4022-11,1-13,1639-15,1751-15 and 1752-15.
17. Since the main writ petition has been dismissed, therefore, all the aforesaid CMs are also dismissed.
Sd/- (Muhammad Farrukh Irfan Khan)
Judge Sd/- Muhammad Qasim Khan) Judge Sd/- (Faisal Zaman Khan) Judge