MRS. SYEDA TAHIRA SAFDAR, J.--This petition was filed with the relief: "--- the election of respondent No, 1 as Chairman Senate having no qualified requirement may kindly be declared as illegal and null and void. The writ of quo-warranto may be issued in the interest of justice, equity and fairplay.
Further, this Hon'ble Court may kindly be pleased to restrain the respondent No, 1 to hold the office of President of Pakistan"
2. It was case of the petitioner that the election for Chairman of the Senate was held on 12th March 2018, while respondent No, 1 Sadiq Sanjrani was declared as Returned Candidate, thus elected as Chairman of the Senate, and hold the post. That one of the duties of the Chairman of the Senate is to hold the office of the President of Pakistan in his absence, and to perform the duties till his return.
That the qualifications to be elected as the President of Pakistan as contained in Article 41, sub- Article (2) of the Constitution of Islamic Republic of Pakistan 1973 (The Constitution) that he must be a Muslim, and not less then than forty five (45) years of age, and also qualified to be elected as a member of the National Assembly. It was his case that Article 49 sub-Article (2) of the Constitution, the Chairman of the Senate has to hold the office of the President in the eventualities as described, but the respondent No, 1 failed to meet the criteria, as he was born on 14th April 1978, and by now 39 years old, thus not qualified to act as President of Pakistan. That this disability to perform the duties would not only create a serious constitutional defect, but also seriously prejudice the country, and the national interest. That this serious violation of the Constitution was overlooked when the Notification of respondent No, 1, to be elected as Chairman of the Senate was issued, thus of no legal effect.
3. The petitioner repeated the averments made in the petition, while added that it is a case of interpretation of the Constitution, thus of general importance, while need deep appreciation of the relevant provisions of the Constitution. He was of the view that if a person unable to take oath of the office of President for want of mandatory requirement, this further disqualified him to be elected as Chairman of the Senate. The petitioner supported his averments by stating that one of the duties of the elected Chairman is that while holding the office of the Chairman of the Senate he has to hold the office of the President in his (President's) absence. Thus he (respondent No, 1) has to fulfill the requirement of age as mandated by Article 41 sub-Article (2) of the Constitution for the person to be elected as President. Thus this criteria has its bearing while electing a member of the Senate as Chairman. He pressed that any disability to be elected as President, also disqualify a member to be elected as Chairman of the Senate. He was of the view that this principle was not observed in case of respondent No, 1, who was elected and took, oath of the office in violation of the Constitution despite the fact he was less than forty five (45) years when elected as Chairman of the Senate.
4. The petitioner not only questioned the election of respondent No,1 Sadiq Sanjrani as Chairman of the Senate, but also asked for issuance of a restraint order against him to hold the office of the President of Pakistan. The prayer is of two folds firstly to declare the election of the Chairman of the Senate contrary to the Constitution and secondly to restrain him to act as President. The petitioner has to make out his case for both the reliefs.
5. The term Chairman defined in Article 260 of the Constitution, with the meaning the Chairman of the Senate. and except in Article 49 of the Constitution, includes a person acting as a Chairman of the Senate. Article 59 of the Constitution deals with the Senate, and contained the procedure for appointment of members of the Senate. While Article 60 of the Constitution is with election of offices of Chairman and Deputy Chairman of the Senate. Re-production would be beneficial: "60. (1) After the Senate has been duly constituted, it shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Chairman and a Deputy Chairman and, so often as the Office of Chairman or Deputy Chairman becomes vacant, the Senate shall elect another member as Chairman or, as the case may be, Deputy Chairman.
(2) The term of office of the Chairman or Deputy Chairman shall be three years from the day on which he enters upon his office. "
While Article 62 contained the qualifications for member of the Parliament, the National Assembly and the Senate. While Sub-Article (1) clause (c) of the Article pertained to the requirements to be fulfilled by a person to qualify to be elected or chosen as member of Senate. Reproduction of clause (c) would be beneficial for better understanding of the issue. It reads as under: "(c) he is, in the case of the 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; "
For better understanding of the issue that a member if not qualify the age required to be elected as President whether could he be elected as Chairman of the Senate? The referred to provisions of the Constitution are to be read co-jointly, not in isolation. The Articles 60 and 62 of the Constitution if read co-jointly the only logical inference which could have been drawn that a person apart from other qualifications might not be less than thirty years of age to be qualified to be elected as Member of the Senate. While a Chairman or a Deputy Chairman of the Senate have to be elected from amongst its members. No age to elect as Chairman or Deputy Chairman is separately described in any other Article of the Constitution.
6. As far the President is concerned, Article 41 of the Constitution stipulates the qualifications of a person to be elected as President. While sub-Article (2) of the Article 41 of the Constitution described the limit of age, it reads as under: "(2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly."
While Article 49 of the Constitution is to meet with the requirement to continue the office of the President in his absence for the stated reasons. The Article reproduced for better understanding: "49. (1) If the office of President becomes vacant by reason of death, resignation or removal of the President, the Chairman or, if he is unable to perform the functions of the office of President, the Speaker of the National Assembly shall act as President until a President is elected in accordance with clause (3) of Article 41.
(2) When the President, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the Chairman or, if he too is absent or unable to perform the functions of the office of the President, the Speaker of the National Assembly shall perform the functions of President until the President returns to Pakistan or, as the case may be, resumes his functions."
Plain reading of the referred to Articles shows that there is no mention of the age of a person to act as President while holding offices of the Chairman or the Speaker as the case may be in the given circumstances.
7. The cumulative effect of the referred to Articles would be that a person qualified to be elected as President, must not be less than forty-five (45) years of age, apart from other qualifications as described. While to deal with the situation when the office of the President is vacant due to his absence for the stated reasons, the Chairman of the Senate shall occupy the office and perform the duties till re-election or return as the case may be. To further meet with the situation the Speaker of the National Assembly is marked as an alternate. Article 49 of the Constitution while dealing with alternate of the President to act in his absence for the stated reasons, provided no limit of age except the reasons of vacation of office and the alternate to fill it (Office) by designation of the posts i,e, the Chairman of the Senate and the Speaker of the National Assembly.
None of the Articles of the Constitution described age of the persons who shall hold the offices of the Chairman of the Senate and the Speaker of the National Assembly, who are to be elected from amongst its members irrespective of the age. Article 62 (1) clause (b) of the Constitution stipulates the age of a person qualified to be elected as member of National Assembly as not less than twenty-five (25) years, while Article 62 (1) clause (c) describe the age of a person qualified to be appointed as Member of the Senate as not less than thirty (30) years of age apart from other qualifications. In view of the language as used in Article 49 of the Constitution, the age of Chairman of the Senate or of the Speaker of the of the National Assembly not a pre-requisite, nor a condition to act as the President of the Country in stated circumstances.
In view what has been stated hereinabove no case is made out for the relief claimed, thus the petition is dismissed in limine.