' This is an appeal filed by Mr.Nazir Ahmed, Advocate against the rejection of his nomination paper as a candidate for the seat to represent "Other professionals" in the Senate by the Returning Officer namely the Provincial Election Commissioner, Balochistan by his order dated 2nd July, 1992. The bye-election has been necessitated due to untimely death of Dr. Nasiruddin Jogezai.
' The Returning Officer has rejected the nomination paper by a short order which may be reproduced below for the convenience of ready reference. It reads :- " In my view the candidate does not come up to the standard prescribed for special seats to represent "Other professionals" in the Senate. Moreover, he has not attached with the nomination paper a certified copy .Of relevant extract from the electoral roll in which his name is enrolled which was a mandatory requirement under subsection (5) of section 11 of the Senate (Election) Act, 1975. Hence his nomination paper is rejected."
3. I have heard the appellant in person, who is a practicing advocate. He submitted that his nomination paper was unduly rejected as he was a qualified professional to contest aforesaid election. He further submitted that his nomination paper was also unduly rejected for non- compliance of subsection (5) of section 11 of the Senate (Election) Act, 1975. It may be convenient if subsection (5) is immediately quoted here:- "Every proposal shall be accompanied by a certified copy of the relevant extract from the electoral roll in which the name of the person nominated is enrolled."
4. He lastly submitted that subsection (5) of section 13 is discriminatory inasmuch as an appeal has been provided against the rejection of nomination paper but no appeal has been provided against the acceptance of a nomination paper. Mr. Ashraf Tanoli, Advocate, counsel for Mr. Akbar Ali Hashwani a candidate was also present on general notice for hearing of an appeal today at 11- 30 a.m.
5. Taking up the second submission first, that the nomination paper was rejected for non- compliance of subsection (5) of section 11 ibid, it was submitted by the appellant that he could produce an extract. He submitted that the provisions of subsection (5) of section 11 ibid are not mandatory and are only directory. He further submitted that he is enrolled as voter in the electoral area mentioned in the nomination paper and this fact could be verified by the Returning Officer himself from the office of the Election Officer. Sibi who maintains electoral rolls, I would have readily agreed with the appellant but I find that under section 13 (3) (c) the Returning Officer is empowered to reject the nomination paper if he is satisfied that any provisions of section 11 or 12 has not been complied with. It seems that the Returning Officer has discretion under this provision and in present case it cannot be said that he has exercised the same unduly because the appellant did not produce a certified copy of the relevant extract from the electoral roll, in which the name of the appellant is enrolled, even at the time of scrutiny by the Returning Officer. The appellant has produced the required extract now. I would have considered the question whether this could be acceptable at this stage or not, but it is not necessary to do so because I am of the considered opinion that the appellant is not qualified to contest the election as he is not a professional, as defined in section 5 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 which reads as follows:- "(c)" "Professional" means a person of distinction with nationally or internationally recognised professional qualifications and practical experience at a high level in a specialised area of knowledge who has been practicing in his specialization by adopting it as his principal calling, vocation or employment."
6. It appears from the above definition that requirements for a professional are as follows:-
(i) He must be a person of distinction:
(ii) He must possess nationally or internationally recognized professional qualifications;
(iii) He must have practical experience at a high level in a specialized area of knowledge; and
(iv) He has been practicing in his specialized field by adopting as his principal calling, vocation or employment.
7. The only qualification shown by the appellant as a professional is that he is a law graduate, enrolled as Advocate of the High Court of Balochistan since 1979 with a total standing of about 15 years and five reported judgments which he detailed as follows:-
(1) Pakistan Criminal Law Journal, 1986, P-2917-Mizar and others v. Amir Khan ' PLD 1980 Quetta 55 Sardar Sawal Khan v. Gul Baran Khan Coal Company.
(2) PLD 1982 Quetta, P/87 PMDC v. Amir Khan PLD 1982 Quetta, P/103, Meher GuI v. M.B.R.
(3) PLD 1986 Quetta P/185 and other cases
8. The above qualifications by themselves are not in my opinion sufficient to prove that the appellant falls within the definition of "professional" as defined in the law mentioned above. In the appeal of Mr. Muhammad Anwar Durrani, Advocate, while considering a similar question I had rejected his appeal inter alia observing in paras.6.7,8 and 9 of that judgment which are as follows:- "6. It will be seen from the abovementioned qualifications and skills that the appellant is a practising advocate for the last 15 years and he is practicing in the High Court since last 13 years as stated at the bar. But the first question for consideration is whether he is a person of distinction as required by the provisions of section .5 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977. In this regard Mr. Tariq Mehmood pointed out that the following important positions held by the appellant, as mentioned in the nomination form are:-
(1) Legal Advisor as Special Assistant to the Care-taker Chief Minister of Balochistan, with the status of Provincial Minister from August 1990 to Novembei, 1990.
(25 Legal Advisor as Special Assistant to the Chief Minister of Balochistan with the status of Provincial Minister from April 1989 to August 1990.
(4) General Secretary, Balochistan Bar Association (1989-90)
(5) Vice-President, Balochistan Bar Association (1981-83)
(6) General Secretary, Balochistan Bar Association (1480-81)
(7) The judgment in one case in which he appeared was reported in Pakistan Legal Decisions..
(8) He wrote an article entitled "BACHOAN KAY HAQOOQ KA QANOONI TASAWUR."
7. In the case Dr. Sycd Farooq Hasan and others v. Mumtaz Ahmad Khan and others (PLD 1988 SC 237 p. 255), Mr. Justice Shafiur Rahman agreed with the view of the Tribunal with regard to a 'person of distinction' in the following words:-- "I am quite clear in my mind that Tribunal correctly held that Mr. Mumtaz Ahmad Khan was not a person of distinction in the field of journalism in the country and on that account could not be elected to the Senate on a reserved seat for Ulema, Professionals and Technocrats."
8. It may be pertinent if the view of the Tribunal is also quoted here:- "In my view 'a person of distinction' does not refer to an above average person or even a person who can be described as 'good' or `very good' in his field. When reference is made to an individual as 'a person of distinction, it connotes a person of eminence or excellence in his field; an individual of exceptional qualities and attainments placing him much above the above-average, the good and the very good; a person who has been honoured or recognised by his community or country or internationally for achievements in any field; a person who is among the top people in his profession. To name a few individuals who can be described as men of distinction without any reservations, one can mention Quaid-i-Azam in the field of politics; Allama lqbal as a poet and philosopher; late Mr. Manzoor Qadir, Mr.A.K.Brohi and Mr. Mahmud Ali Qasuri and several others in the legal profession; Imran Khan and Jchangir Khan in the field of sports. Then there are and can be many others who have attained or achieved eminence or excellence in special fields..."
9. If I "examine the case on the touchstone of the above criteria I find that the petitioner has not been able to satisfy that he is a person of distinction on the basis of his qualifications and what he has stated in the Annexure to the nomination paper and mentioned hereinbefore. At the most on the basis of so-called achievements as narrated by him he may have acquired some prominence in bar but not distinction either in his profession or as a person."
9. Order passed in Mr. Muhammad Anwar Durrani Advocate's case was questioned in the Constitutional jurisdiction of the Balochistan High Court in Constitution Petition No,CP-66/91. The Division Bench of the High Court consisting of Mr. Justice Mir Hazar Khan Khoso, Chief Justice and Mr. Justice Iftikhar Muhammad Chaudhry upheld the order and while doing so observed as follows:- "9. In order to prove this requirement of law, it was incumbent upon him to show high performance of his calibre, achievement and competency in the profession of law, so he could have placed himself at a high pedestal, comparing to other members of profession. He also does not possess any other professional qualification, which is recognized nationally or internationally, merely obtaining the degree of law and getting himself enrolled as an Advocate, is not sufficient to satisfy this condition; in this context, no material is available on record to prove his special qualification in the field of law, on the basis of which he was recognized nationally or internationally. Similarly no iota of evidence was produced before us to point out his practical experience at a high level in a special area of knowledge and there is also no indication on record to show that he was practising in special field of law. It may be observed that the Constitiution has created reserved seats for Professionals in the Highest Legislative Body i,e. Senate, therefore a candidate who has just qualified an examination would not be able to represent'at his class of profession effectively. The Hon'able Supreme Court has considered this' legal proposition in case of Farooq Hussain v. Mumtaz Ahmad reported in PLD 1988 SC page 237. Relevant portion at page 253 is reproduced below:- "The reservation made for a distinct professional or occupational group on the highest legislative body or the country is an exception and a special provision which has to be interpreted strictly and only those who satisfy the conditions of competence, of qualification, or experience and of standing as prescribed in the laws can be held eligible. There can be no relaxation of the requirement, no dilution, no mitigation in the requirement of the law."
10. The petitioner has not demonstrated before us anything to show that due to extraordinary eminence and excellency or efficiency in field of law, he has made remarkable performance amongst the members of legal fertility which had made him a person of distinction and due to outstanding credentials in his favour in the rank of Advocates, he has placed himself at a high level.
11. As field of law is vast field and there are many branches of law, thus any person who is putting himself as a candidate in Senate against reserved seat for professional, he has to point out about his achievements, research work etc. In order to bring himself within the definition of professional.
The high knowledge of law should also be of such a category which is recognized nationally and internationally, as for instance, in our country we can refer to many eminent jurists like late A.K.
Brohi and Mahmud All Kasuri. They were prominent in the profession as they had made full justification in the profession with their job, resulting in production of creative and research work which is recognition of their high knowledge in special area of law.
12. Although an Advocate had the knowledge of law, but to prove himself as professional, he has to prove an extraordinary competency in the field of law. In absence of such like thing, no relexation can be given to anyone, we should keep in our mind that compromise in relaxing the requirement of law, in fact would amount to circumvent the status of institution of Senate which is a highest legislative body in the country.
13. Indeed to be a member of Senate against reserved seat of professional itself is a matter of great pride and privilege and before assuming such high office one should prove his talent and knowledge by making himself a distinctive person than the others."
10. As regards the question of discretion it is not within my jurisdiction to consider the same. It is for the legislature.
11. Respectfully following the judgment of Balochistal High Court uphold the order of the Returning Officer and dismiss the appeal.