' S. Z. CHOUDRI, J.--Petitioner Choudri Sultan Mahmood was elected as a Member of the Azad Jammu and Kashmir Legislative Assembly from the Constituency LA-3 Mirpur-3 in the election held on 21-5-1990. Both, the petitioner and respondent No.2 were contesting candidates in the Election of the Presidentship of Azad Jammu and Kashmir held on 27-8-1990. Respondent No.2 having secured larger number of votes (32) than the petitioner who secured 23 votes, was declared as elected and his name was thereafter notified as President of Azad Jammu and Kashmir.
2. Feeling aggrieved the petitioner challenged the correctness and validity of the respondent's election through this Constitutional petition inter alia on the grounds:--
(a) That respondent No.2 under the provisions contained in the Interim Constitution Act, 1974 (hereinafter to be called as an Act) was not qualified for re-election to the office of the Presidentship for the second consecutive term and that the Federal Minister for Kashmir Affairs, an Ex officio Member of the Council, having participated and cast his vote in the Presidential Election, acted in violation of the Constitutional provisions. The whole election exercise was therefore rendered invalid; (b)That the Members of the Azad Jammu and Kashmir Council who had been elected in the General Election held in 1985 only for a term of five years also had no right to vote. Their participation and casting of votes in the Presidential Election being violative to the spirit of the Act rendered the Presidential Election invalid and of no legal consequence.
3. The point that respondent No.2 was even otherwise disqualified either to contest or to be elected as President of Azad Jammu and Kashmir though not specifically taken in the writ petition was at the admission stage raised and permitted to be argued. The respondents apart from controverting all the points raised on behalf of the petitioner also took the objection that the jurisdiction of this Court in view of the provisions contained in the Act stood ousted.
4. Arguing first on the point of ouster of jurisdiction Mr. Abdul Basir Qureshi learned Counsel for the petitioner contended that subsection (3) of section 5 of the Act would not divest this Court of its powers of judicial review and the Constitutional jurisdiction to interpret the provisions of the Constitution and to ascertain as to what a particular provision of the Act means or does not mean, even if that particular provision is the one seeking ouster of the jurisdiction of the Court. In support of the plea the learned Counsel referred to PLD 1973 SC 49, PLD 1988 Lak 725, PLD 1989 Kar. 404, PLD 1989 SC 26-166 and AIR 1975 SC 2299. As regards section 52 of the Act, it was equally not applicable in the case, contended the learned counsel.
5. In reply to the argument addressed on behalf of the petitioner it was argued on behalf of the respondent that in view of subsection (3) of section 5 and the provisions contained in section 52 of the Act neither the election of the President could be called in question in any Court, before any Tribunal or other authority nor any proceedings could be initiated or process could be issued against the sitting President. Since there was a complete ouster of jurisdiction, the writ petition was claimed as liable to be dismissed on this short ground.
6. The arguments in the petition were concluded on 2-7-1991. As an application had been submitted on behalf of respondent No. 2 to enable him to file written arguments through his counsel, Mr. S.M. Zaffar learned counsel was permitted to submit the same on or before 6-7-1991 with the condition that a copy of the same was to be provided to the learned counsel for the petitioner two days prior to the filing of the same with this Court to enable him to submit reply.
Written arguments have been filed by them with this Court. Among others a plea has been taken by Mr. S.M. Zaffar learned counsel for the respondent No.2 that section 34 of the Act provides blanket validity to the proceedings of the joint sitting and as such the election of respondent No. 2 was immune from being challenged in any Court.
7. As appears from the provisions contained in the Act, executive, legislature and the judiciary are the three organs. The realm within the perimeter of which each is to function has been specified.
The superior Courts namely; the High Court and the Supreme Court are the creatures of the Act.
These therefore evidently derive their powers and jurisdictions from the Act. It is indeed correct that where the ouster clause is clear and unequivocal, admitting of no other interpretation, these are to be given effect. The fact however remains that the High Court and the Supreme Court have the competence to interpret the constitutional provisions and to ascertain as to what a particular provision of the Act means or does not mean, even if that particular provision is a provision seeking ouster of the jurisdiction of the Court. Whenever ouster of jurisdiction is sought under enactment or under a particular constitutional provision those have to be narrowly construed as there is a presumption against the ouster of jurisdiction of the superior Courts. While considering the proposition in case titled "State v. Zia-ur-Rehman PLD 1973 SC 49 Mr. Justice Hamoodur Rahman, CJ. Observed:-- "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.
' This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself."
The principle that superior Courts have the power of judicial review and the competence to interpret as to what a particular Constitutional provision means or does not mean and that the immunity from judicial review and scrutiny was not available, was fully affirmed in case titled `Khawaja Muhammad Sharif v. Federation of Pakistan', PLD 1988 Lahore 725. It thus becomes clear that this Court has the power available to it to examine and interpret the relevant provisions to ascertain their true import.
8. The best rule of interpretation to ascertain as to what a particular enactment or a Constitutional provision is to look into the plain language Ic employed and to construe it in a manner which may not render other provisions of the enactment or of the Constitution redundant. The question that now therefore requires determination is as to what subsection (3) of section 5 as contained in the Act really means. In order to have a correct perception of the point involved and for its proper determination it would be helpful to have a reference to subsections (2), (3) and (4) of section 5 of the Act which read:- "(2) The election to the office of President shall be conducted under the control and supervision of the Chief Election Commissioner.
(3) The election of the President under subsection (2) shall not be called in question in any Court or before any Tribunal or other authority.
(4) No person shall be qualified for election as President unless:-
(a) he is a Muslim;
(b) he has attained the age of thirty-five years;
(c) his name appears on the electoral roll prepared for election of the members of the Assembly; and
(d) he is qualified to be elected as a member of thef Assembly."
From the bare reading of these Constitutional provisions it becomes clear that section 5 of the Act not only provides for the ouster clause but also specifically makes provision as regards the qualification/disqualification relating to election of a person as President. Subsection (3) clearly provides that election of the President under subsection (2) shall not be called in question in any Court or before any Tribunal or other authority. We cannot be oblivious of the fact that the section which contains . The ouster clause does also contain the qualification/disqualification provision. The argument that subsection (3) provides a blanket immunity if accepted would simply render subsection (4) as redundant. Since the qualifications/disqualifications are contained in the Act itself, any action violative to these express and specific Constitutional provisions would be violative of the Constitution and the High Court in exercise of its judicial review powers available to it would unhesitatingly declare it to be so. What subsection (3) protects simply is the conduct and mode of election conducted under the supervision of the Chief Election Commissioner. The language employed in subsection (3) clearly refers to the election of the President under subsection (2) which, is to be conducted under the control and supervision of the Chief Election Commissioner.
What it provides for simply is that the procedure and method adopted in the conduct of elections, irregularities if any, committed therein and as regards the fair count of the votes cast etc. Are given protection. It provides no immunity whatsoever to the pre-existing disqualification of a candidate.
9. As regards the ouster of jurisdiction and immunity from judicial review, reliance was also placed on sections 34 and 52 of the Act. It has also been contended on behalf of the respondent No.2 that this Court had no jurisdictional competence to examine the legality of respondent's election as President as the validity of the proceedings in the joint sitting could not be questioned in any Court nor the regulation of proceedings, conduct of business and maintenance of the order in relation to the exercise of the authority vested in him by an officer was subject to the jurisdiction of any Court either. Furthermore no proceeding, civil or criminal, could be initiated against the President. The argument, on careful consideration, is found to have no substance for the reason that what section 34 provides for precisely is a protection only as regards the measure passed by the joint sitting. The protection provided only is as regards the regulation of proceedings, conduct of business etc. In the joint sitting because these are the matters pertaining to the internal domain of the joint sitting, The High Court in exercise of its Constitutional jurisdiction and power of judicial review available to it can undoubtedly go into the question as to whether the measure passed by the joint sitting was constitutionally valid or violative of any Constitutional provision. To hold otherwise would be a simple absurdity. If the measure passed is violative of any Constitutional provision, it cannot be said that it stood protected. In the instant case, it is not the proceedings or the meeting of the joint sitting, the constitutionality of which has been challenged. It is rather the alleged pre-existing disqualification on the basis of which validity of the measure passed by the joint sitting has been challenged.
10. The proposition came to be considered in Smt. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 in the following circumstances. Appeal filed by appellant Indira Nehru Gandhi in that case, in which the cross-objection had also been filed by the respondent, arose out of a judgment of the High Court of Allahabad wherein it was held that appellant held herself out as a candidate from 29-12-1970 and was guilty of having committed corrupt practice and as such was held to be disqualifed for a period of six years from the date of order. Thirty-ninth amendment in the Constitution Act, 1975 was under challenge. Article 71 was replaced by new Article 71: The second insertion through that amendment was the insertion of Article 329-A in the Constitution. It contained four clauses. It was clause (4) which was under challenge in those two appeals. It provided that no law made by the Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975 in so far as it related to election petitions and matters connected therewith were to apply or were to be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void under any such law and notwithstanding any order made by any Court before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. The sixth clause provided that the provisions of that Article were to have effect notwithstanding anything contained in the Constitution. While considering the proposition Mr. Justice H.R. Khanna, J observed:-- "180. The contention advanced by Mr. Shanti Bhushan that the sittings of the two Houses of Parliament in which the impugned Acts were passed were not valid essentially relates to the validity of the proceedings of the two Houses of Parliament. These are matters which are not justiciable and pertain to the internal domain of the two Houses. Of course, the Courts can go into the question as to whether the measures passed by Parliament are constitutionally valid. The Court cannot, however, go into the question as to whether the sittings of the House of Parliament were not constitutionally valid because some members of those Houses were prevented from attending and participating in the discussions in those Houses."
11. On careful consideration we have no doubt in our minds that section 34 of the Act only provides protection to the proceedings, mode and conduct in the joint sittings and not to the measures passed by the joint sittings. The pre-existing disqualification is found to have not been protected under section 34 as otherwise it would be violative to the provision contained in subsection (4) of section 5 of the Act.
12. Similarly the protection under section 52 of the Act relates to criminal and civil proceedings against the President while he is in office in relation to anything done or not done, or purporting to have been done or not done, by him , in his personal capacity, whether before or after he enters his office. The point in issue in the instant case is not as to what respondent No.2 has done or not done but rather is as regards the pre-existing disqualification specifically provided under the Constitutional provisions. On careful consideration of the point involved, the argument on the point having no force therefore stands rejected.
13. The question that next needs consideration is as to whether respondent No. 2 was qualified for re-election to the office of the Presidentship for the second consecutive term. It has been argued on behalf of the petitioner that in view of subsection (5) of section 5 of the Act respondent No. 2 was not qualified for re-election as President for the second consecutive term. The ground made basis for this plea by the learned Counsel for the petitioner was the language employed in subsection (5). The terms 'period' and 'his successor enters upon his office', employed in the subsection, according to the learned Counsel, were a clear pointer to the fact that a sitting President was not qualified for re-election for the second consecutive term and it was somebody other than the sitting President who was to enter upon his office as his successor. In support of his submission a reference was made to section 15 of the Act, Article 44, sub-Article (2) of the Pakistan Constitution and Articles 56 and 57 of the Indian Constitution. Elaborating the point the learned Counsel argued that in case of the Prime Minister no bar for re-election for the second consecutive term was intended. It was therefore specifically provided under section 15 of the Act that the Prime Minister shall continue to hold office until his successor enters upon the office of the Prime Minister.
The reason as to why in section 15 the term upon the office of the Prime Minister in relation to the Prime Minister and enters upon his office has been used in subsection (5) relating to the President, was clearly that a bar to re-election for the second consecutive term was intended in case of the President but not so in the case of the Prime Minister. Besides, the term 'his successor', according to the learned Counsel, clearly meant that it was to be a person other than the sitting President himself. Had the intention been to allow the sitting President to seek re-election for the second consecutive term, it would have been provided so in subsection (5) of section 5 of the Act. As it was intended so, it has specifically been provided in the provisions contained in the Constitution of Pakistan and India. The argument as regards the term 'his successor enters upon his office' should be taken as somebody other than the sitting President, is found to have no substance for the reason that the correspondentiprovision in the Pakistan Constitution is couched in the identical language. Acticle 44, sub-Article (1) provides: "subject to the Constitution, the President shall hold office for a term of five years from the day he enters upon his office provided that the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office." Clause (c) in subsection (1) of Article 56 of the Indian Constitution Act is also couched in the identical language.
14. As regards the objection that Had it been intended that a sitting President could seek re- election for the second consecutive term, it would have been specifically provided so in subsection
(5) of section 5 of the Act because where it was intended to be so in case of the President of Pakistan and the President of India, specific provisions have been made in the Constitutions of India and Pakistan. On careful consideration, we are not impressed by the argument on the point addressed on behalf of the petitioner. On perusal of sub-Article (2) of Article 44 of the Pakistan Constitution it undoubtedly is restrictive in nature because the intention was to make the President ineligible from holding the office of the Presidentship for more than two consecutive terms. The reliance was also placed on Article 57 of the Indian Constitution. This Article postulates that a person who holds, or who has held, office as President shall, subject to other provisions of the Constitution, be eligible for re-election to that office. In view of this provision, it was claimed by the learned Counsel that since subsection (5) of section 5 of the Act was silent on the point, it should therefore be taken that the President was not eligible for re-election for the second consecutive term. The argument on the face of it is found to be misconceived. In some Constitutions like that of Irish Constitution as well as Pakistan Constitution re-election for more than two terms has been prohibited. These, as already stated, are restrictive in nature and had to be clearly provided as a bar for more than two consecutive terms was intended.
15. Similarly Indian Constitution does not place any bar on the re-election of the same person to the office of the President and it has been provided so under Article 57 but to say that non-mention of it must necessarily be construed to mean that a person could not seek re-election for the second consecutive term would be drawing an inference wholly unwarranted. It is not only the Act which is silent on the point but there are other countries, the Constitutions of which are silent. The Constitution of the U.S.A. Can be taken as example in the case. As originally enacted it said nothing about the re-election or the terms of the President, though until the Second World War under a well-established convention one person did not hold more than two terms. But then this convention too was done away with when President Roosevelt was re-elected for the third term during the World War II.
16. The proposition may be examined from yet another angle. Subsection (4) of section 5 of the Act provides that no person shall be qualified for the election as President unless, among other qualifications he is qualified to be elected as Member of the Assembly. Section 24 of the Act provides qualification and disqualification of Members of the Assembly. Clause (d) in subsection
(2) of section 24 of the Act provides that a person shall be disqualified from being so elected if he, among others, holds any office of profit in the service of Azad Jammu and Kashmir or in the service of Pakistan other than an office which is not a whole time office remunerated either by salary or by fee. The term service of Azad Jammu and Kashmir as defined in section 2 of the Act reads connection with the affairs of Azad Jammu and Kashmir, including the Council, but does not include service as Chairman of the Council, President, Speaker, Deputy Speaker, Prime Minister, Minister, Federal Minister in Charge of the Council Secretariat or Advisor appointed under section 21, or a member of the Assembly or member of the Council;"
' From the bare reading of this definition it becomes clear that had the intention been to exclude the sitting President from seeking re-election for the second consecutive term then the President would not have been excluded from the definition. It therefore becomes clear that no such bar, as has been contended on behalf of the petitioner, was intended. The argument on the point is therefore found to have no substance.
17. Taking up his next point of objection Mr. Abdul Basir Qureshi learned Counsel for the petitioner submitted that respondent No.2 even otherwise was disqualified either to contest election or to be elected as President of Azad Jammu and Kashmir. In view of subsection (8) of section 5 of the Act respondent No. 2 stood disqualified to be elected as a Member of the Assembly. This provision, according to the learned Counsel, was a complete bar as it clearly provided that the President shall not be a member or a candidate for election as a member of the Assembly. Since the disqualification of respondent No.2 who was a sitting President to be elected as member of the Assembly was evident, his having been notified by respondent No. 1 as President of Azad Jammu and Kashmir was therefore clearly violative to this Constitutional provision and as such it was of no legal consequence, submitted the learned Counsel.
18. As against this, it was argued on behalf of the respondent No.2 that the provision of subsection
(8) has been misconstrued and misappreciated by the learned Counsel for the petitioner. In no way could it be construed as relating to the qualification of respondent No.2 to be elected as member of the Assembly. The argument on the point addressed by the learned Counsel for the petitioner was, according to the learned Counsel for the respondents, therefore, without any substance and did not merit consideration.
19. We have given our careful consideration to the point canvassed on behalf of the parties.
Subsection (8) of section 5 of the Act merely provides that a person qualified to be elected as member of the Assembly when elected as President while occupying that office shall not be a member or a candidate for election asli member of the Assembly and if a member is elected as President his seat in the Assembly shall become vacant on 'the day he enters upon his office. The restriction envisaged under subsection (8) only relates to a candidature and has got nothing to do with the qualification of a person to be elected as member of the Assembly. The reason behind the provision is in keeping with the sanctity and the decorum of the high office of the Presidentship because once a person occupies the office of the President he is the head of the State. To say that a sitting President can only seek re-election after he resigns and leaves his office of Presidentship would amount to putting a construction on the Constitutional provision not in line with the scheme of the Constitution. Such an interpretation is neither possible nor does it flow from the language employed in the said subsection. Besides, it would not be possible without doing violence to another Constitutional provision i.e. Subsection (5) of section 5 of the Act which clearly provides that notwithstanding the expiration of his term the President shall continue to hold office until his successor enters upon his office. The object of the provision is to be ascertained which naturally flows from the language used in the provision. The meaning soughi to be given to the provision by the learned Counsel for the petitioner not flowing from the plain language used in the subsection, would be repugnant to the rules of interpretation and would be irreconcilable to another constitutional provision i.e. Subsection (5). The qualification/disqualification of a person for his election as President as envisaged under subsection (4) of section 5 are almost identical to those contained in the Constitution of Pakistan and India. The relevant provision on the subject in the Indian Constitution is Article 58 and in Pakistan Constitution it is Article 41, sub-Article (2) with the only difference that in case of Pakistan the age limit is as not less than 45 years. Identical to the Constitutional provision namely; subsection (8) of section 5 of the Act is sub-Article (2) of Article 43 of the Pakistan Constitution and Article 59 in the Indian Constitution. Exactly same language has been employed in these provisions. For the proper perception of the point involved it would be helpful to have a reference to these which read: "The President shall not be a candidate for election as a member of Parliament or a Provincial Assembly; and, if a member of Parliament or a Provincial Assembly is elected as President, his seat in Parliament or, as the case may be, the Provincial Assembly shall become vacant on the day he enters upon his office."
' Article 59 of the Indian Constitution is also to the same effect. It thus becomes clear that subsection (8) of section 5 of the Act has no nexus with the qualification of a person to be elected as member of the Assembly. The argument on the point addressed on behalf of the petitioner is therefore found to have no substance.
20. As regards the participation and casting of vote by the Federal Minister; the learned Counsel for the petitioner submitted that under section 21, subsection (3-A) of the Act, the Federal Minister of State for Kashmir Affairs and Northern Affairs was only an ex officio member of the Council who under subsection (10) of section 21 of the Act had no right to vote. His participation and casting of vote in the Presidential election held on 27-8-1990 was violative of the provision contained in the Act. The whole election exercise therefore, according to the learned Counsel, stood invalidated. It was further contended that the amendment effected in the Azad Jammu and Kashmir President (Election) Rules, 1985 through a Notification dated 28-9-1985 whereby definition of the voter was changed, was in derogation of the provision contained in the Act.
21. In reply it was argued on behalf of the respondents that respondent No.2 having secured larger number of votes in the joint sitting was duly elected and notified as President. Respondent No.4 was entitled to vote and the exercise of his right by him was therefore unexceptionable. As regards the Notification dated 28-9-1985, it was claimed to have been issued with lawful authority and, according to the learned Counsel for the respondents, suffered from no such legal infirmity as has been contended on behalf of the petitioner.
22. Section 5 of the Act postulates that there shall be a President of Azad Jammu and Kashmir who shall be elected by the members of the joint sitting by the votes of majority of the total membership of the joint sitting in such manner as may be prescribed. The term joint sitting in section 2 of the Act has been defined as 'joint sitting' means a joint sitting of the Assembly, the Federal Minister Incharge of the Council Secretariat and the elected members of the Council. From the bare reading of this definition contained in the Act it becomes clear that there are three constituents or the components of the joint sitting namely, the Assembly, the Federal Minister Incharge of the Council Secretariat and the elected members of the Council. Under section 5 of the Act the President is to be elected by the members of the joint sitting by votes of majority of the total membership of the joint sitting. Section 5 when read alongwith the dentition given in section 2 of the Act leaves no doubt that total members of the joint sitting are to cast their votes and by votes of majority of the total membership of the joint sitting, the President is to be elected. The plea that respondent No.4 being the Federal Minister of the State for Kashmir Affairs and Northern Affairs was under section 21 of the Act, an ex officio member of the Council, having no right to vote is misconceived for the reason that section 21 alongwith all its subsections relates to the Council Affairs. It has no relevancy as regards the election of the President or the proceedings of the joint sittings. Besides, under section 2 of the Act, one of the components of the joint sitting is shown to be the Federal Minister Incharge of the Council Secretariat and not the Federal Minister of the State for Kashmir Affairs. The Federal Minister Incharge of the Council Secretariat may not necessarily lie the Federal Minister of the State for Kashmir Affairs. Under section 21, subsection (1), clause (c) it has been provided that the Council among others shall consist of five members to be nominated by the Prime Minister of Pakistan from time to time from amongst Federal Ministers and members of the Parliament. Over and above that under subsection (3-A) of section 21 of the Act, the Federal Minister of State for Kashmir Affairs was also to be an ex officio member of the Kashmir Council.
Under subsection (7) of section 21 the executive authority of the Council is to be exercised, in the name of Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister nominated by the Chairman shall be the incharge.
23. The point that needs to be taken note of is that it is the Federal Minister of the State of Kashmir Affairs who shall be an ex officio member having no right of vote in the Council affairs. Section 5 read with definition clause contained in section 2 of the Act has no relevancy as regards the point in issue to the provision contained in section 21 of the Act which exclusively deals with the Council affairs. In view of the clear constitutional provision it cannot therefore, be said that the Federal Minister Incharge of the Council Secretariat could not participate or cast his vote in the joint sitting,
24. Argument has been advanced on behalf of the petitioner that it was a prerequisite for a voter in the joint sitting to be State subject and a voter listed in the electoral roll prepared for election of the members of the Assembly. We cannot be oblivious of the fact that from the very nature of it, the Act is unique having special features. Unlike other countries of the world, the Interim Constitution of the State postulates a unique scheme in the manner as under section 56 read with section 31(3), the Government of Pakistan has been assigned responsibilities in the light of the Resolution of the United Nations Commission for India and Pakistan with respect to the areas called Azad Jammu and Kashmir. The introduction of the name of Federal Minister Incharge of the Council among the electorate, in the joint sitting, for the election of President, is found in consonance with the aforesaid scheme. The Act, as it is, is the supreme law. The superior Courts derive their powers and jurisdictions from the Constitution and are bound to protect it. What it is not open to the High Court is to declare any of the Constitutional provisions as ultra wires. It is however, within its competence to interpret and to say as to what a particular constitutional povision means or does not mean. This view stands fully affirmed in case titled State v. Zia-ur-Rahman PLD 1973 SC 49 and in case titled `Sharaf Faridi v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar.
404. In view of the provision contained in section 5 read with definition clause in section 2 of the Act, it cannot therefore, be said that the Federal Minister Incharge of the Council Secretariat could neither participate nor cast his vote in a joint sitting of the Assembly. The argument on the point is therefore found to have no force.
25. Adverting to the Notification relating to amendment in ruls 2, clause (h) in the Azad Jammu and Kashmir President (Election) Rules, 1985, the point that needs to be taken note of is that the Rules under section 58 of the Act are made for carrying out the purposes of the Act and for the furtherance and in aid of it. Those in any case are not to be in derogation of the provisions of the Act. In view of the clear Constitutional provision, the amendment through Notification of the relevant clause of the Rules is perfectly valid and in accord with the Constitutional provision. Even in rule 2, clause (I) the joint sitting has been defined to mean a joint sitting of the Assembly, the Federal Minister Incharge of the Council Secretariat and the elected members of the Council. The definition of voter in clause (h) on the face of it was not in line with the Constitutional provision and to make it harmonious with the provisions contained in the Act, the amendment through Notification has been brought about with competence and as such the Notification was not open to any exception, as has been contended on behalf of the petitioner.
26. Arguing on his last point of objection the learned counsel for the petitioner submitted that members of the Azad Jammu and Kashmir Council who were elected in the last general election held in 1985 could neither legally participate nor cast their votes in the Presidential election held in 1990. The reason made basis for this plea was that since their term was about to expire, they were therefore not entitled to exercise their right of vote in the Presidential election for the next term of five years. The argument, on careful consideration, is found to be devoid of any force. Respondent No. 1, the Chief Election Commissioner, in discharge of his Constitutional obligation acted perfectly in accordance with the spirit of the Constitution by holding election of the President strictly in accordance with the time schedule envisaged under the Act. It is no case of the petitioner that the elected members of the Council who participated in the joint sitting, were not the members of the Council. It stands admitted even by the petitioner that their term had not yet expired. It, therefore, can be said that these elected members having incurred no disqualification and still being the members of the Council had a legal vested right to participate and cast their votes in the joint sitting. The argument on the point is also found to be without any substance. Besides, as already stated in the earlier part of this judgment, the validity of the proceedings in the joint sitting could not be made a subject of challenge. In Abdul Aziz Qureshi v. Federation of Pakistan PLD 1990 Lah.
488, it was held that the validity of any proceeding in the Parliament cannot be called in question on the ground of any irregularity of the procedure nor those could be rendered invalid on the ground that some persons who were not entitled to do so, sat, voted or otherwise took part in the proceedings. In Smt. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299, a challenge was made to a Constitutional amendment among others also on the ground that session of Lok Sabha any! Rajya Sabha was invalid as quite a large member of the elected members had been illegally detained and prevented from participation. The objection was held as relating to validity of the proceedings of two Houses of the Parliament and I pertaining to the internal domain of the two Houses, the matter was therefore held as not justiciable. In the instant case, as already stated in the earlier part of this judgment, the elected members of the Council were legally entitled to participate and to cast their votes in the joint sitting for the election of the President.
27. For the aforestated reasons, the writ petition is found to have no force. It is therefore dismissed with costs.