JAMAL KHAN MANDOKHAIL, C.J.--- Facts in brief are that a seat of Technocrat in Senate of Pakistan from Balochistan became vacant, consequently the Election Commission of Pakistan on 6th July 2017 notified by- election. The petitioner submitted his nomination papers as per the schedule claiming to be a Technocrat, which were rejected by the Returning Officer/respondent No.2 on 17th July 2017, declaring that he did not qualify to contest the election on special seat of Technocrat. The petitioner feeling aggrieved, preferred an appeal before the Election Commission of Pakistan, which too was dismissed on 19th July 2017, hence this petition.
2. Learned counsel for the petitioner stated that the qualification and disqualificatio n for the member of Senate has been provided by Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, respectively , according to which, the petitioner fulfils the qualification criteria to become a member of the Senate and does not possess any disqualification laid down in the Constitution, therefore, rejection of his nomination papers is illegal. He added that the reason advanced by the respondents while rejecting the nomination papers of the petitioners is based on the definition of "Technocrat" mentioned in the Conduct of General Election Order , 2002 (the Order , 2002), which was promulgated for the conducted of elections of the year 2002, after the said election , it is no more in field. He stated that the qualification for the Technocrat mentioned in the Order , 2002, is not applicable to the candidates, contesting by-elections of the year 2017, because of the fact that the said law was for one time only. The learned counsel relied upon the case reported in (1991 SCMR 573) and (2000 SCMR 250). He stated that the newly enacted Elections Act of 2017 contains the definition of Technocrat, which was promulgated after the conduct of the Senate by-election of the year 2017, therefore, the said law also cannot be applied retrospectively to the matters, pertaining to the by-election of the year 2017.- Besides, the learned counsel added that since the qualification and disqualification to become a member of the Parliament has been defined in the Constitution, as such, no law can be promulgated in conflict with the constitution, therefore, the definition of Technocrat, mentioned in the Order 2002 as well as in the Act of 2017, is contrary to the provisions of Articles 62 and 63 of the Constitution, which has no force at all.
3. Learned counsel for the respondent, the learned DAG appearing on behalf of the learned Attorney General and the learned Advocate General opposed the contention of the learned counsel for the petitioner and stated that the Constitution provides different categorie s of the members of Senate, i.e. Gene ral category , Technocrat, Alim, Minorities and Women. They stated that for all the categories, the basic qualification and disqualification has been provided by the Constitution, whereas for the special seats, the relevant election laws provide definition. They stated that when the petitioner submitted his nomination papers for the seat reserved for Technocrat, the relevant law applicable was the Order , 2002, wherein the Technocrat has been defined in its section 2(d). They stated that keeping in view the qualification provided by the law, the petitioner did not qualify to contest for the seat reserved for Technocrat in the Senate of Pakistan, therefore, his nomination papers were rightly and concurrently been rejected by both the forums.
4. Arguments heard and the record perused. Facts in brief are that upon availability of a seat of a member in the Senate, reserved for Technocrat, from Balochistan, the Election Commission of Pakistan vide a notification dated 17th July 2017, announced a schedule for by-elections, in pursuance of clause (V) of Article 224 of the Constitution, read with sections 10 and 77 of the Senate (Election) Act, 1975 (Act No.LI of 1975). Article 59 of the Constitution describes composition of the Senate of Pakistan and categories of its members. Article 62 of the Constitution provides basic qualification for becoming a member of the Parliament, whereas Article 63 describes disqualification for the membership of Parliament respectively . For the conduct of election, the Constitution does not provide procedure, therefore, Article 222 of the Constitution empowers the Parliament to make laws, providing method, procedure and dealing other , matters necessary for the conduct of election and due constitution of two Houses of the Parliament and the Provincial Assemblies. By exercising such powers, the Parliament has promulgated the Senate (Election) Act, 1975 (Act No.LI of 1975) (the Act of 1975), but the word "Technocrat" has not been defined in it. However , in the year 2002, when the Parliament was not in existence because of Martial Law, the then Dictator decided to hold elections, therefore, he promulgated the Conduct of Senate Election Order , 2002 (the Order , 2002), wherein the word Technocrat has been defined. Sections 3 and 4 of the said Order provides its applicability and empowered the Election Commission of Pakistan to conduct the election of the year 2002. Both the sections are since relevant, therefore, the same are reproduced herein-below: "3. Order to override other laws. ---The provisions of this Order shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force -relating to the forthcoming elections to the [Senate] National Assembly and the Provincial Assemblies.
4. Conduct of General Elections.--- Subject to the Election Commission Orde r, 2002 (C.E.'s Order No.1 of 2002) and notwithstanding anything to the contrary contained in the Constitution, the Electoral Rolls Act, 1974 (XXI of 1974), the Delimitation of Constituencies Act, 1974 (XXXIV of 1974), [the Senate (Election) Act, 1975 [LI of 1975], the Representation of the People Act, 1976 (LXXV of 1976) and the Houses of Parliament and provincial Assemblies (Elections) Order , 1977 (PPO No.5 of 1977), or any other law for the time being in force, the Chief Election Commissioner or, as the case may be, the Election Commission shall take the constituencies, and adopt such steps and measures, including preparation of electoral rolls and delimitation of the constituencies, and adopt such procedure, do such acts, pass such orders, issue such directions and take all such ancillary , incidental and consequential steps as may be deemed necessary for effectively carrying out the elections for the members of the [Senate] National Assembly and Provincial Assemblies in October , 2002."
5. The Order , 2002 was a special law and its above provisions clearly demonstrate that it was promulgated for carrying out the elections to the Senate, the National Assembly and the Provincial Assemblies, which were to be held in October 2002. Since imposing Martial Law, the Constitution, the Parliament and the Election Laws applicable, were held in abeyance, therefore, the intention of the man in power was to assign special power to the Election Commission for holding the Sena te Elections for the year 2002 in the country , as such, it was a time bound law. After the conduct of the election in the October 2002, the objective of the Order , 2002 stands achieved, where- after, it is no more in existence. It is a settled principle of law that when an enactment is done for a specific purpose and period, after achieving the said purpose on the specified date, the said law ceased to exist, resultantly , the Act of 1975, stands revived. Thus, at the time when the by-election in question was announced, the Election Commission of Pakistan, by exercising power under the Act of 1975, announced the schedule for the conduct of by-election vide notification dated 5th July 2017. It is important to mention here that since the Act of 1975 was in field, according to which, the Senate by-elections were to be held, therefore, for all intents and purposes, each and every provision of the said Act was to be followed. It is important to mention here that there was no definition of the Technocrat in the Act of 1975, therefore, the only provision left for the election authorities while scrutinizing the nomination papers of the petitioner and others for the purpose of qualification and disqualification, were Articles 62 and 63 of the Constitution, but the respondents, have relied upon the definition of Technocrat, mentioned in section 2(d) of the Order , 2002. They did not consider the fact that the elections were to be held under the relevant provisions of the Constitution and the Act of 1975, therefore, whatever was the requirement and qualification for the special seat of Technocrat, was to be followed, but the needful was not done, rather the respondents followed the provisions of the Order , 2002, hence exceeded their jurisdiction, while rejecting the nomination papers of the petitioner . It is important to mention here that same situation arose in respect of earlier Presidential Order No.5 of 1977, which is identical with Order , 2002. The matter went up to the Hon'ble Supreme Court of Pakistan in the case of Shaikh Rafiq Ahmed v. Zia Shahid reported in (1999 SCMR 573), which interpreted the provisions of the P.O. 5 of 1977 in Para 18 of the said judgment as under: "18. Answer is quite obvious, and by now we are fully aware that except details with regard to provision of "The Constitution" which had revived none of the events or processes specified in P.O. 5 of 1977 can possibly be repeated. They have, certainly had one time action which materialized and concluded by convening joint sitting of two houses of Parliament and revocation of Proclamation. Neither Chief Martial Law Administrator is conceived in the Constitutional set-up nor is appearance to address the Assembly could be dreamed. Similarly , provision relating to administering oath under P.O.5 has been rendered nugatory , redundant and inconsistent with Constitutional provisions. Therefore, for all intents and purposes, objection for promulgation of P.O.5 which was only for "forthcoming election", was achieved and it automatically became inoperative when after the first general elections of 1985, the elected Body passed Constitution (Eighth Amendment) Act on 11th November , 1985 and proclamation was withdrawn through PROCLAMA TION OF WITHDRAEAL OF MAR TIAL LAW dated 30th December , 1985 (PLD 1986 Central Statutes 13)".
6. Under such circumstances, since the Order , 2002 was no more in existence at the time when the by-elections for the seat reserved for Technocrat in Senate was announced, therefore, the schedule was issued by the Election Commission by exercising power under the Act of 1975. The respondents acted illegally by rejecting the nomination papers of the petitioner , on the basis of the provisions of a redundant law. The material available on the record would reveal that the petitioner fulfills the qualification, as provided by Article 62 of the Constitution and also does not have any disqualification for the special seat of Technocrat in Senate, as provided by Article 63 of the Constitution, as such, he was qualified to contest the be-elections as a member of the Senate against the seat meant for Technocrat from Balochistan.
7. As far as the objection of the learned counsel for the petitioner with regard to the applicability of the newly enacted Elections Act, 2017 is concerne d, no doubt, it was promulgated after holding the Senate by-elections, therefore, it has no retrospective effect, as such, the definition mentioned therein will have no bearing upon the candidature of the petitioner . With regard to the objection of the learned counsel for the petitioner upon the definition of Technocrat mentioned in the Act of 2017 is concerned, we are not in agreement with the learned counsel. It is important to mention here that Article 59 of the Constitution provides the composition of the Senate and categories of its membership, wherein Technocrat is one of them. Though the Constitution does not provide specific and clear definition of Technocrat, but by categorizing the members, the intention of the Constitution makers is clear to differentiate the general seats from special ones. The purpose of categorizing the special seats is to elect persons having specialization and expertise in a relevant field. Under such circumstances, naturally , there must be some additional qualification for the special seat as compared to the general seats. Now what should be the criteria and qualification of a person contesting election against reserved seat, though Article 62 provides general qualification for a member of Parliament, but that does not differentiate Technocrat from general member , therefore, the Parliament while exercising power under Article 222 of the Constitution, enacted the Act of 2017. In this Act, the term "Technocrat" and "Ulimahs" have been defined, wherein additional qualification for the members, contesting elections for specialized seats has been determined. It is however to be noted that the extras qualification required for the special seats is in addition to the general qualification and disqualification, as provided by Articles 62 and 63 of the Constitution . This issue has also been interpreted by the Hon'ble Supreme Court in Para No.22 of the above referred judgment, which is reproduced hereunder: "22. At this stage, it would be appropriate to mention that even in the absence of any explanation manifestly when The Constitution' mandates that certain seats be reserved for specialized field, the standard for selecting such person must be kept considerably higher than merely normal or high as opined in the above reports. If marke d distinction is not kept in view, while considering reserve seats then perhaps the Constitutional intent of having people of eminence pertaining to specified fields shall be completely frustrated."
8. In view of the above discussion and the findings of the Hon'ble Supreme Court, it is clear that the Parliament has all the under Article 222 of the Constitutio n power to enact laws for the effective conduct of elections for both the Houses of the Parliament and the Provincial Assemblies, provided that it shall not be inconsistent or in derogation of the Constitution, Quran and Sunnah. The definition of "Technocrat" mentioned in the Elections Act, 2017, is in no way inconsistent with the Constitution, however it does not apply to the by-election for the seat of Technocrat in Senate from Balochistan, held in July 2017.
Thus, the petition is allowed. The orders dated 14th July 2017 and 19th July 2017, passed by the respondent No.2 and the respondent No.1, respectively , are set aside. The nomination papers of the petitioner are accepted, resultantly the notification of the Election Commission of Pakistan, declaring the petitioner as successful candidate, holds the field.