1. ' Through these applications, common to the two References, respondent Ms. Benazir Bhutto claims that pursuant to her being successfully returned to Parliament the References made to this Court have become infructuous and should be dismissed. Replies and re-joinders in respect of these applications have been filed.
2. ' Briefly, the questions raised on behalf of respondent Ms. Benazir Bhutto are as under:--
(1) The Parliament and Provincial Assemblies (Disqualification from Membership) Order, 1977 (President's Order 17 of 1977), subject to the various pleas of the respondent in these proceedings, per Article 5 thereof, in appropriate cases, confers jurisdiction only to disqualify the person proceeded against 'for a period of 7 years from being elected or chosen as a member of Parliament or a Provincial Assembly'. President's Order 17 of 1977, aforesaid, was only a temporary legislation and cannot hit a person who has been returned to Parliament or a Provincial Assembly 'from being a member' after having been successfully elected.
(2) In respect of persons who have been elected to Parliament or a Provincial Assembly 'if any question arises' whether such a person 'has become disqualified from being a member' the command of the Constitution under Article 63(2) thereof is that such question shall be referred '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'. Thus, pertinent jurisdiction to decide the question whether a sitting member of Parliament or a Provincial Assembly has become disqualified vests exclusively in a forum created by the Constitution namely the Chief Election Commissioner and no other authority can render a finding in that behalf.
(3) Preliminary issues in the above terms should be framed and decided first.
3. ' In answer, the arguments advanced, as regards the above applications, on behalf of the Referring Authority are summarised below:--
(1) This Court under a special law is seized of matters purporting to be sufficient for disqualification of the respondent 'from being elected or chosen as a member of Parliament or a Provincial Assembly'. In the event a positive finding is given against the respondent, Article 63(1)(p) of the Constitution of Pakistan shall automatically become operative and the respondent 'shall be disqualified from being elected or chosen as, and from being a member' of the Parliament.
(2) The applications submitted by the respondent are mala fide and the respondent is estopped from pursuing the same as inordinate delay was caused by her by obtaining unnecessary adjournments thereby defeating the process of the Court and precluding a determination against her before the National Elections, which were held on thei24th of October, 1990. This assertion is rebutted on behalf of the respondent who maintains that the bulk of postponements are attributable to requests made on behalf of the Referring Authority."
4. ' It will be convenient first to take up the question whether the issue raised in the instant applications can be taken up in isolation of the main controversies in these References. Authorities have been cited by either side to project their conflicting points of view. Mr. Yahya Bakhtiar on behalf of the respondent/applicant relies on Akhtar Ali Parvez v. Altafur Rehman PLD 1963 Lah. 390, Muhammad Saleem v. Hafiz Ahmed Din PLD 1975 Lah. 425, Abdullah Khan v. Mst. Abbasi Begum 1982 CLC 1956, Rehmat Ali v. Mushtaq Ahmed PLD 1989 SC 593 (Shariat Appellate Bench) and Haji Muhammad Aslam Khan v. Muhammad Aslam 1990 SCMR 211, substantially to the effect that a Court of law should dispose of a controversy treating it to be a preliminary one where a pure issue of law affecting maintainability arises which is based on admitted or readily verifiable facts so that in a controversy which can be brought to a close on the basis of legal questions, pure and simple, the parties are not dragged in protracted proceedings. Reliance has also been placed on the cases of Mirza Jawad Baig v. The State PLD 1975 Kar. 628, Sindh Employees Social Security Institution v. Adamji Cotton Mills Ltd. PLD 1975 SC 32 and I.C.I. (Pak.) Ltd. v. Pakistan 1990 CLC 943 laying down that jurisdiction to hear a matter, either originally or in appeal, on general principles, also includes jurisdiction to grant interim relief. On the other hand, Mr. Kemal Mustafa Bukhari would place reliance on River Steam Navigation Company Ltd. v. The Commissioner for the Port of Chittagong and another PLD 1961 Dacca 412, Ibrahim v. Muhammad Hussain PLD 1975 SC 457, Muhammad Hanif v. Provincial Election Authority and 3 others 1982 CLC 1352 and Sajid Mian v. Habib Bank Ltd., Pakistan 1990 CLC 557 to the effect that disposal on technical grounds or on preliminary issues ought not to be resorted to in preference to decision embracing the entire controversy unless the Court comes to the conclusion that the whole matter can be decided without resort to a detailed examination of all facts and law and that it is a sound practice to avoid fragmentary decisions more so because such can lead to avoidable delays both at the trial and at the appellate stages.
5. In a nutshell, the rule is to avoid unnecessary protraction of proceedings in a judicial forum where the whole case can be decided without resort to minute details in a LIS. However, in adopting such course the Court must be satisfied that there are not only sound but strong reasons for the disposal of the whole case on a preliminary or legal ground. In all other cases involving controversial legal questions posed alongside factual disputes, it is safer to consider all the controversies, legal and factual, together, for in no other way can justice be adequately, properly and completely done. It is on this reasoning that the present applications have to be examined.
6. ' Mr. Yahya Bakhtiar has referred to the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 to urge that in accordance with such decision, rendered by the Supreme Court on 10-11-1977, the then C.M.L.A. Was to see "that the period of Constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive of the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution".
7. This was followed, inter alia, by the promulgation of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 17 of 1977, published on 25-11-1977, which, according to Mr. Yahya Bakhtiar, was only a temporary measure calculated to initiate accountability in the ensuing period alone. I find the following passage at page 715 of the report in Begum Nusrat Bhutto's case:- - "It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared intention of the Chief Martial Law Administrator still remains the same, namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life."
8. ' On the foregoing premises, argument advanced is that at the time when President's Order 17 of 1977, aforesaid, was promulgated there were no Assemblies in existence and the sole intention then was to preclude a person, who was found guilty of misconduct within the meanings of the said Presidential Order "from being elected or chosen as a member of Parliament or of a Provincial Assembly". In obvious contrast, according to Mr. Yahya Bakhtiar, was another law at the time in force namely Act V of 1977 which, per section 5 thereof, evisaged a disqualification "from being elected or chosen as, and from being, a member of Parliament or of a Provincial Assembly". It is urged that the phrase "from being a member", which found place in Act V of 1977 is, conspicuously, missing in President's Order 17 of 1977 because the former statute was calculated to cover even sitting members whereas the latter law applied only to persons, who were seeking or were to seek election to Parliament or a Provincial Assembly.
9. On principle, it is unsafe to compare the language used in one statute with that employed in another even though the subjects covered by the two may involve similarities. Otherwise, too, the comparison may not be conclusive on the point agitated. Without seeming to express any firm opinion on the matter and subject as below, it may not have been without significance that section 5 of Act V of 1977 spoke of disqualification "until the holding of the next general elections--" whereas Article 5 of President's Order 17 of 1977 contemplates disqualification "for a period of 7 years ". Besides, Article 4 of President's Order 17 of 1977, inter alia, embraces "the case of a person who is holding or has held the office ...." of a member of the National Assembly or of a Provincial Assembly. The matter may not stop there for Article 62(1)(p) in the Constitution provides as under:- - "63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-i-Shoora (Parliament), if--
(P) he is for the time being disqualified from being elected or chosen as a member of the Majlis-i- Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force." #TBS C D #TBE In the first place, a legislation cannot be considered to be temporary or transitory in nature merely because it is the product or outcome of a given situation. In construing a statute such is to be examined as a whole and, as far as possible, broad meanings should be attributed to the language employed therein. Thus, when section 5 of Act V of 1977 (since repealed by the Parliament and Provincial Assemblies (Disqualification for Membership) (Amendment) Ordinance, 1990) spoke of a disqualification "until the holding of the next general elections " it could not conclusively be said that such enactment lapsed by efflux of time after the holding of the elections of 1977. It could perhaps be argued that the words "next general elections" accruing in section 5 of Act V of 1977 would cover "the next of general elections" in a definite future time-frame. In other words, two opinions on the matter are possible, much in the same way as in regard to President's Order 17 of 1977.
10. Even if what the respondent says in the, instant applications is accepted and it is found that this Court, in a given case, can disqualify a person only "from being elected or chosen as a member of Parliament or a Provincial Assembly" and cannot disqualify a person "from being" such a member (if already elected) certain incidents cannot be overlooked and that is the minimum on which these applications can be decided. Firstly, the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 17 of 1977, expressly speaks of "the case of a person who is holding or has held the office of ......" a member of the National Assembly or a Provincial Assembly. It is, on the language, clear that a reference under such Order can be made not only in respect of persons who were members of a dissolved Assembly but also in respect of sitting members of an Assembly. Next, even if it is accepted that after a reference has been made in respect of a specific individual and, before any order adverse to such person is passed, that person is elected as a member of Parliament or a Provincial Assemb) and that a Court constituted under President's Order 17 of 1977 cannot disqualify such a person "from being" such a member, it cannot plausibly be argued that such a person can participate in an election, after incurring disqualification, within a period of 7 years, by giving up his existing seat for any other such elected office, for instance, a member of the Provincial Assembly may not contest for the National Assembly after incurring disqualification and during the time it is operative or a member of the National Assembly may not contest for the Senate or vice versa, during such period. Similarly a person even while he is a member of a particular Assembly may, in given circumstances, like to contest from another constituency but cannot do so, if subject to disqualification, the last situation arising pertinently in respect of by elections. Likewise, the disqualification, if any, would equally apply to another general election after the prescribed tenure of 5 years provided that the period of disqualification is operative. On this reading of the statute, even if all contentions from the side of the respondent are accepted, if not more, for the purposes of argument only, it cannot be said that these References have become infructuous in their entirety. Unless a particular LIS has become infructuous in its totality, it cannot be dimissed for even if a fraction of relief remains available a Court of law is bound to decide such on merits.
11. Turning now to the argument that the jurisdiction to declare a person disqualified "from being" a member of the Parliament or a Provincial Assembly under Article 63(1)(p) read with Article 113 of the Constitution is exclusively that of the Chief Election Commissioner, acting under Article 63(2), it is to be seen that Article 63(1) conceives of a number of exigencies, as appearing in sub-clauses (a) to
(p) thereof. Mr. Bukhari contends that a person, who is subject to any of the disqualifications in these, sub-clauses per se automatically ceases to be a member of Parliament or a Provincial Assembly, as the case may be. This may or may not be so. In any case, if a question arises whether a particular person has incurred such a disqualification, as aforesaid, then the jurisdiction to decide that question, via the Speaker or the Chairman of the Senate, would be that of the Chief Election Commissioner, whose jurisdiction would be exclusive in the matter. Now, because President's Order 17 of 1977 envisages disqualification only "from being elected or chosen as a member of Parliament or of a Provincial Assembly", what would happen if a Special Court, in a given case, disqualifies a sitting member of Parliament or a Provincial Assembly? Question would legitimately arise whether such a person is also disqualified from continuing to be a member of the Parliament or a Provincial Assembly. That question, if any, can only be decided in terms of Article 63(2) by the Chief Election Commissioner and a Special Court will have no jurisdiction in the matter. To this extent the respondent is right when she maintains that whatever be the findings in these References this Court cannot arrogate to itself the powers under Article 63(1)(p) read with Article 63(2), if attracted.
12. Another cognate question, however, is as to how the period of 7 years of disqualification, if any, under Article 5 of President's Order 17 of 1977 has to be reckoned. The legislation is silent on the point of commencement of such period. The rule with regard to the effective date relative to an order is susceptible to several interpretations but the interpretation, in a particular case, under a particular law, has to be based on the objectives, contents and incidents of that law. Thus, in a given case, the LIS may be decided on the basis of the situation prevailing at the time of its institution. In other cases, developments subsequent to the institution and during pendency of the matter, such as the election of the respondent in the instant case, may be taken note of. In yet other cases the controversy may be decided on facts as they prevail at the time of disposal of the matter. None of the learned counsel has addressed arguments on this question which, of course, will be open to scrutiny at the time when the case is.Decided in the final analysis. No opinion, therefore, one way or the other, need, at this stage, be expressed on the matter.
13. ' Lastly, Mr. Kemal Mustafa Bukhari has maintained that the respondent is estopped from 'filing these applications because, for mala fide reasons, delay has been caused from her side precluding a decision at a date prior to the last general elections. In the rejoinder, respondent has pleaded that the cause of delay is to be laid at the door of the Referring Authority. Both are in error.
14. Time was allowed to the respondent during the course of proceedings because of arguable reasons. On a few occasions, prior to the issuance of notices to the respondent, the cases were, on some dates, adjourned and specific details and particulars were required from the Referring Authority, the object being to ensure that no notices are issued to anybody unless the Court is satisfied that a case for holding further enquiry exists; Thus, undoubtedly, time has been consumed. It is true that "Justice delayed is justice denied" but rough and ready justice is itself a negation of the Rule of Law. In Islam, even bare justice is not enough. It is to be tempered with mercy (ADL BIL AHSAN). A balance has, therefore, to be struck. Following the letter and spirit of the law, which is being applied in these References, on every occasion when a longish adjournment was allowed, reasons have been recorded in the relevant order. At any event, there is no stopple against law. If in given circumstances or evolved circumstances, no adverse order in law can be passed in a case none will be passed, irrespective of any conduct.
15. ' For the foregoing reasons, this Court can neither accept the instant applications of the respondent nor can it dismiss them. Such applications can only be disposed of in the above terms. These are so disposed of. The reference will proceed in accordance with what is said herein.