' M. MAHBOOB AHMAD, C.J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks issuance of a direction to Mr. Muhammad Nawaz Sharif, Prime Minister of Pakistan, respondent No.1 requiring him to show under what authority of law he is holding the office of the Prime Minister of Pakistan and to issue a prohibitory order restraining him from functioning as Prime Minister and also issuing a direction to respondents Nos.2 and 3 to hold election to the office of the Prime Minister afresh in accordance with law.
2. It has been asserted in the petition that on 6-11-1990, respondent No.1 was elected as Prime Minister in a special session of the National Assembly; that the said election was required to be held through a secret ballot as provided by Article 226 of the Constitution of Islamic Republic of Pakistan but in violation thereof, the opinion of the members was ascertained by show of hands; that the election of respondent in violation of Article 226 ibid is in disregard of the Constitution and thus an act of high-handedness which was liable to be condemned especially when it was committed by the Legislature itself.
3. Report and parawise comments were called for from respondents Nos.2 and 3 which have since been received and perused.
4. Today the petitioner who has appeared in person has reiterated the contents of the petition.
5. Having given consideration to the controversy, we are of the view that the contentions raised have no force. Article 91(2) and 91(2-A) which are relevant for resolution of the issue raised are reproduced hereunder for facility of reference:-- "Article 91(2). The President shall in his discretion appoint from amongst the members of the National Assembly a Prime Minister who, in his opinion, is most likely to command the confidence of the majority of the members of the National Assembly.
(2-A) Notwithstanding anything contained in clause (2), after the twentieth day of March, one thousand nine hundred and ninety, the President shall invite the member of the National Assembly to be the Prime Minister who commands the confidence of the majority of the members of the National Assembly, as ascertained in a session of the Assembly summoned for the purpose in accordance with the provisions of the Constitution."
6. A bare reading of the above provisions shows that the Prime Minister is to be "appointed" by the President and is not to be "elected" by the National Assembly. The President, however, has to appoint such member from amongst the members of the National Assembly as Prime Minister who commands the confidence of the majority of the members as "ascertained" in a session of the Assembly summoned specially for the purpose in accordance with the provisions of the Constitution.
7. In order to arrive at a proper conclusion about the controversy involved, the three phrases that fall for consideration are "Elect", "Appoint" and "Ascertain". It may be pertinently noticed that in Article 91(2-A), the significant words used are "appoint" and "ascertain" which on the face of it have connotations distinct and different from the word "election". "Ascertain" has been defined in Chambers 20th Century Disctionary as, to appraise, to assure, to find out, to ensure and to make certain, while the word "election" has been defined in the same dictionary as the act of electing or choosing; the public choice of a person for office usually by the votes of a constituent body.
Similarly according to Black's Law Distionary the word "ascertain" means to fix, to render certain or definite; to estimate and determine; to clear of doubt or obscurity, whilst "election" is defined as the act of choosing or selecting one or more from a greater number of persons, things, courses or rights with respect to persons to fill public office, the term means in ordinary usage the expression by vote of the will of the people or of a somewhat numerous body of electors.
8. In Law Lexicon by Ayer, the word "ascertain" has been assigned two meanings (1) known, (2) made certain, to free from obscurity, doubt or chance, to fix, to settle or determine. Whereas the word "election" has been defined as the act of choosing; a free choice between different things; the selection of one man amongst more; the act of choosing a person to fill an office or employment by any manifestation of preference as by ballot.
9. Similarly the word "appoint" according to Black's Law Dictionary Fifth Edition Page 91 means to designate, ordain, prescribe, constitute, or nominate, to allot or set apart, to assign authority to a particular use, task, position, or office. Term is used where exclusive power and authority is given to one person, officer, or body to name persons to hold certain offices. It is usually distinguished from "elect", meaning to choose by a vote of the qualified voters of the city; though this distinction is not invariably observed.
10. From the definitional meanings assigned to the words "election" and "appointment" as given in the verious dictionaries, it clearly emerges that "election" ordinarily has reference to a choice or selection by electors, while "appointment" refers to a choice or selection by an individual. The distinction brought out as above between the three expressions when applied to the case in hand would mean that in the context of the constitutional provisions governing the subject, it is the President who has to appoint the Prime Minister after ascertaining for himself in the manner prescribed as to who from amongst the Members of the Assembly commands confidence of the House.
11. Similar question arose for consideration in Mc. Pherson v. Blacker reported as (146 US I), wherein it has been observed that the term "appointment" is to be distinguished from "election". The former is an executive act, whereby a person is named as the incumbent of an office and invested therewith, by one or more individuals who have the sole powers and right to select and constitute the officer.
Election means that the person is chosen by a principle of selection in the nature of a vote participated in by the public generally or by, the entire class of persons qualified to express their choice in this manner.
12. No basis having been laid and none being available to equate the words "appoint" and "ascertain" with the word "election" Article 226 of the Constitution which has been pressed into service by the petitioner in support of his case has no relevance to the appointment of respondent as Prime Minister by the President of Pakistan as the provision applies only to elections.
13. The view that we have taken as above also finds support from the Legislative history of the two provisions namely Article 91 and Article 226 of the Constitution. Originally i.e. Before amendment of Article 91 of the Constitution by President's Order No.XIV of 1985 and Constitution (Eighth Amendment) Act of 1985; Article 91(2) read as under:-- "After the election of the Speaker and the Deputy Speaker, the National Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its Muslim Members to be the Prime Minister."
' Similarly Article 226 before its amendment by the aforementioned two amending laws read as under:-- "All elections under the Constitution other than those of Prime Minister and the Chief Minister shall be by secret ballot."
14. It may also be pertinently observed here that per settled principle of construction every word used in a provision has to be assigned the meaning in its common parlance and if different words are used the intention clearly is to convey different meaning. Similarly it is also well established that if a word used in a provision is substituted by another through an amendment the intention of the framer manifestly is to bring about a change in law for otherwise its efforts would be futile.
15. It would further be seen that even under the old dispensation, the election of the Prime Minister was not required to be held through a secret ballot which position has been maintained by making the corresponding amendments in the two relevant provisions viz. Aritcles 91 and 226. It was halfheartedly argued by the petitioner that the deletion of the words "other than those of the Prime Minister and Chief Minister" from Article 226 shows that the intention of amendment was to have the Prime Minister also elected through a secret ballot. While advancing this argument the petitioner appears to have lost sight of the corresponding amendment in Article 91(2) whereby the requirement of election of the Prime Minister was done away with and instead the President was empowered to appoint that person from amongst the Members to be the Prime Minister who in his opinion commands the confidence of the majority of the members which majority has to be ascertained as provided by sub-Article (2A) of Article 91 ibid. It has already been observed that "election" and "appointment" are different concepts.
16. In view of the foregoing discussion, we are clearly of the view that the petition has no merit whatsoever and the same is accordingly dismissed.