' SARDAR MUHAMMAD DOGAR, J.---Sardar Wajid Ali, a candidate for NA.74, Gujranwala-I had raised objection before the Returning Officer at the time of scrutiny against acceptance of the nomination papers of Hamid Nasir Chattha, Liaquat All Cheema, Col. (Rtd.) Ghulam Sarwar Cheema, Mir Muhammad Farooq, Irshad Ullah Waraich, Saif All Chattha, Jamil Asghar Khizri and Haq Nawaz Jiwinda. The objection against each of them, was that since they were not keeping Sharai beard, each one of them had committed a major sin and so were not eligible to contest election for the membership of Majlis-e-Shoora. He had also raised the objection that such persons were neither competent witnesses in a Court of law nor could be accepted as Oolulamar ({{URDU TEXT}} ) of an Islamic State. In support of the objection he had relied upon a Fatwa {{URDU TEXT}} said to have been issued by the Islamic Ideology Council. The learned Returning Officer overruled the objection and accepted the nomination papers of each of them. Not feeling satisfied, he has filed Appeals Nos.22, 23, 24, 25, 26, 27, 28 and 29 of 1993 against Hamid Nasir Chattha, Liaquat All Cheema, Col. (Rtd.) Ghulam Sarwar Cheema, Mir Muhammad Farooq, Irshad Ullah Waraich, Saif Ali Chattha, Jamil Asghar Khizri and Haq Nawaz Jiwinda respectively. As common questions of law and facts are involved in all the appeals they are being disposed of together.
2. Learned counsel appearing for the appellant contended, that none of the respondents in the said appeals fulfilled the conditions laid down in clause (e) of Article 62 of the Constitution of the Islamic Republic of Pakistan and that since admittedly none of them was bearing beard, they were not depicting the true posture of a Muslim required of every Muslim. Learned counsel traced the history of Muslim rulers in order to canvass the point that whenever the rulers or the ruling class of Mulsim States, did not act in accordance with the Islamic Injunctions, not only the Muslims at large suffered but the Muslim States were also conquered and subjugated by others. Learned counsel was very much sanguine that if this Tribunal holds that none should be allowed to contest elections to Majlis-e-Shoora who was not a true Muslim, was not living in accordance with the Qur'an and Sunna, and was not bearing the posture required of a Muslim, the fate of the country will be different and much better than the State in which we are. Learned counsel also cited Ahadees from Jawahrulhikam written by Maulana Badar Alam, to canvass the point that according to the said Ahadees Nabi Akharuzzaman (peace be upon him) declared that the Hakams of the Muslims should be only those persons who followed the Injunctions of Islam truly, do not ask for Hakoomat nor even express such wish. He also argued that Blackstone's Commentaries contain the definition of law to mean, law of God revealed to Holy Prophets mentioned in the Holy Qur'an, Bible, Zabur and Torah, in order to canvass the point that this Tribunal has vast powers to decide the matter considering the commandments of Holy Prophet (peace be upon him) notwithstanding the fact that there are Constitutional limitations. Learned counsel also claimed during the arguments that the Americans who were the most prosperous nation of the world had also borrowed the principles laid down in Qur'an. Referring to Story of Mankind by Brifoult and Jews and their lives by Marton Luther it was argued that the western authors are one on the point that the modern notions of democracy had been taken by the West directly from the Holy Qur'an. The Western World has heavily relied upon Khutba Hajjatul Wida of Nabi Akharuzzaman (p.b.u.h.) in reshaping the modern day concepts of democracy.
' He has also pressed into service the contents of a speech delivered by Pop-Jan Paul II in 1988 declaring that if Muslims and the Christians were to follow the Farman of Nabi Akharuzzaman given at the time of Hajjatul Wida, the world would be much more prosperous and happier.
3. Lastly, learned counsel also traced the history of philosophy of creation of Pakistan and expressed deep faith that if we are able to have true Muslims as our Oolulamar, Pakistan and the Muslim world as a whole will benefit a lot and will certainly surpass all the difficulties, that we are facing in Pakistan and our Muslim brethren elsewhere in the world.
4. We heard the learned counsel at a great length and with keen interest.
5. We have no hesitation in saying that all Muslims herein and elsewhere would be sharing the wishes of learned counsel that Islam prospers and all the Muslims live in peace and prosperity. We also have no hesitation in saying that it would be the wish of every Muslim that their rulers are pious, God-fearing and faithful, but the question, is whether we can command so while sitting as a Tribunal notwithstanding the fact that the form of Government and methodology of choosing representatives/rulers, have been provided in the Constitution and Representation of the People Act, 1976? The form of Government and the methodology laid down for the election of the representatives/rulers in the Constitution of the Islamic Republic of Pakistan and Representation of the People Act, is such that the people have to come forth and canvass for being elected as representatives/rulers. That being so we are not in a position to declare that the rulers should be such persons who neither offer nor wish to become representatives/rulers as ordained by the Prophet of God Nabi Akharuzzaman (peace be upon him).
6. The Judges of the superior judiciary are the creation of the Constitution, and have taken oath to defend and uphold the Constitution. Can, therefore, we, while sitting as a tribunal direct a change in the form of the Government methodology for electing representatives or appointing the rulers?
We feel and believe, we cannot.
7. For doing all, what the learned counsel wanted and pressed for, it would require framing entirely a new Constitution, which certainly is neither the job nor the extent or domain of the Courts.
8. According to the Constitution and the provisions of the Representation of the People Act, 1976 there is no bar on a person who has not grown beard to contest election. Therefore, we are unable to accept the appeals of the appellant and declare that the nomination papers of the respondents in all the appeals be rejected and they be debarred from taking part in the election for not having grown beard in accordance with the Sharia. The appellant had not produced evidence against anyone of the respondents nor had he even alleged before the Returning Officer that anyone of the respondents had committed any major sin, except that none of them had grown beard. No such allegation was levelled before us also. We, therefore, are unable to hold that they were not eligible to contest election, as provided in clause (e) of Article 62 of the Constitution of the Islamic Republic of Pakistan.
9. Although learned counsel during the arguments had not referred to the incorporation of the provisions of Article 2-A in the Constitution of Pakistan vide which the Objectives Resolution was made a substantive part thereof but the scope and extent of the said incorporation also have not invested so vast powers upon the Judges of the superior Courts so as to make them competent to declare that the election should be held in a different system and there should be a different form of Government.
10. The matter regarding the increase in extent of powers by the incorporation of Article 2-A, in the Constitution of the Islamic Republic of Pakistan was considered by the Supreme Court in Hakam Khan and 3 others v. Government of Pakistan through the Secretary, Interior and others PLD 1992 SC 595 and it was held that:-- "In the context of a Constitution having been framed already namely the Constitution of 1973 of which Constitution the newly-added Article 2-A is to form an integral part, a difficulty arises in comprehending as to what the true import and significance of this clause in the present context, is? Does it imply that a Constitution is yet to be framed for the sovereign independent State of Pakistan and that the said Constitution will be framed in the light of the principles enunciated in the clauses of the Objectives Resolution that follow? Or can it be construed to mean that in the changed context these Objectives will be fulfilled by the provisions of the existing Constitution of the sovereign independent State of Pakistan? And in case the existing provisions thereof do not measure up to them or are repugnant to the principles and provisions set out in the Objectives Resolution, the said provisions can be declared by the Courts to be inoperative to the extent of the repugnancy?
' Now the well-established rule of interpretation is that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provisions, the Court should harmonise them, if possible. See Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC 219 at p.235.
' This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2-A is a supra Constitutional provision. Because, if this be its true status then the above-quoted clause would require the framing of an entirely new Constitution.
And even if Article 2-A really meant that after its introduction it is to become in control of the other provisions of the Constitution, then most of the Articles of the existing Constitution will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution. According to the opening clause of this Resolution the authority which Almighty Allah has delegated to the State of Pakistan is to be exercised through its people only "within the limits prescribed by Him". Thus, all the provisions of the existing Constitution will be challengeable before Courts of law on the ground that these provisions are not "within the limits of Allah" and are in transgression thereof. Thus, the law regarding. Political parties, mode of election, the entire structure of Government as embodied in the Constitution, the powers and privileges of the President and other functionaries of the Government will be open to question. Indeed, the very basis on which the Constitution is founded namely the trichotomy of powers i,e, that the three great organs of the State have their own particular spheres of authority wherein they exercise their respective powers or the system of checks and balances could be challenged, alongwith all the ancillary provisions embodied in the 1973 Constitution in relation thereto. Thus, instead of making the 1973 Constitution more purposeful, such an interpretation of Article 2-A, namely that it is in control of all the other provisions of the Constitution would result in undermining it and pave the way for its eventual destruction or at least its continuance in its present form. This presumably was not the intention of General Muhammad Ziaul Haq while adding Article 2-A in the Constitution under the Revival of the Constitution Order, 1985 (President's Order No,14/1985). It certainly was not the intention of the law-makers who enacted Article 270-A (vide section 19 of the Constitution (Eighth Amendment) Act, 1985) which provision affirmed and adopted, inter alia, P.O. 14/1985 (whereby Article 2-A was inserted in the Constitution). Their intention simply was that the Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision and become equal in weight and status as the other substintive provisions of the Constitution. In case any inconsistency was found to exist between the provisions of the 1973 Constitution and those of the Objectives Resolution it would, they expected, by harmonised by the Courts in accordance with the well-established rules of interpretation of the Constitutional documents already mentioned. Being creatures of the Constitution it was not visualized that they could not annul any existing Constitutional provisions (on the plea of its repugnancy with the provisions of Article 2-A) as no Court, operating under a Constitution, can do so. To use the picturesque words of Mr. Justice (Rtd.) Sh. Aftab Hussain, former Chief Justice of the Federal Shariat Court, in his discourse on the subject of the Shariat Bill and its implications PLD 1986 Journal 327, The Courts are the creation of the Constitution and on no principle of law can they be allowed to cut the tree on which they are perched'. The learned Chief Justice, in the same discourse, in which he made the above observation, proceeded to observe that the objection in respect of the un-Islamic character of the Constitution is more ill-advised. It was passed by a Parliament consisting of renowned Ulema representing all our politico-religious organisations all of whom approved it. This is sufficient certificate for its Islamic character, if someone thinks that some of its provisions are contrary to Sharia, he should raise the issue in the Majlis-i-Shoora (Parliament).'
"Obviously, these observations flow from him finding that it is not open to Courts to invalidate a provision of the Constitution, being creature of the same Constitution. According to him, even if the inconsistency alleged is in relation to an Islamic Injunction, the issue should be raised in the Majlis- i-Shoora and the remedy obtained through it (Parliament) rather than from the Courts."
' In view of the above discussion, we are fully convinced that there is no merit in these appeals.
They are hereby dismissed.