1. ' SAEEDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of a Division Bench of High Court of Sindh, dated 28-2-1994 whereby Constitution Petition No,D-461 of 1994 filed by the ' petitioner to challenge the Notification No,E.9 (23)1888-Cord dated 7-7-1993 was dismissed summarily.
2. ' The facts relevant for the decision of this petition are that the petitioner contested election for a special seat of Senate reserved for Ulema, Technocrats and other professionals alongwith Haji Muhammad Ibrahim Hingoro and Mr. Hassan A. Sheikh. Mr. Hassan A. Sheikh and Mr. Ibrahim Hingorjo were declared elected against the reserved seats for 2 Technocrats. The petitioner filed an election petition bearing No,1 of 1988 before the Election Tribunal impleading Haji Ibrahim and Mr. Hassan A. Sheikh as respondents. However, the petition was not pressed against Mr. Hussan A.
3. Sheikh and the contest in the election petition was confined between Haji Ibrahim and the petitioner. The Election Tribunal after recording evidence of the parties came to the conclusion that neither the petitioner nor Haji Ibrahim were eligible for election against the reserved seat for Technocrats. Accordingly, the election to one reserved seat for Technocrats for the Province of Sindh against which Haji Ibrahim was elected was declared void by the Election Tribunal and re- election was ordered. Both, the petitioner as well as Haji Ibrahim, filed appeals against the judgment of Election Tribunal before this Court being Civil Appeals Nos. 160-K of 1989 and 161-K of 1989. Both these appeals were disposed of by a consolidated judgment dated 29-6-1993 whereby the appeal filed by Haji Ibrahim was dismissed, while the appeal filed by the petitioner was accepted and he was declared elected as Senator to the reserved seat for the Province of Sindh in the Senate. As a result of the judgment of this Court referred to above, the impugned Notification was issued declarting the petitioner as elected for the unexpired period of the Senate seat. The petitioner, accordingly, took oath of the office on 19-7-1993 and his term as Senator expired on 20- 3-1994. On 3-2-1994 the petitioner filed Petition No,461 of 1994 before High Court of Sindh seeking declaration that he is entitled to remain as Member of the Senate by virtue of his election on 29-6- 1993 for a period of 6 years. The learned Judges of the Division Bench, however, dismissed the petition relying on the decision of this Court in the case of Ehsan-ul-Haq Piracha v. Chief Election Commissioner (PLD 1988 SC 687). The petitioner is now seeking leave to appeal against the above judgment of High Court of Sindh.
4. ' Mr. Raja Muhammad Akram, the learned counsel for the petitioner relied on the provisions of sub- clause (3) of Article 59 of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as "the Constitution" only) and section 82 of the Senate (Election) Act, 1975 (hereinafter to be referred as 'Act'), to contend that the term of the office of a Senator is 6 years from the date of the first meeting of the Senate held after the names of such Senators elected to the Senate is notified by the Election Commission. It is, accordingly, contended by the learned counsel that the period of 6 years in the case of petitioner shall be deemed to have commenced from the date of first meeting of the Senate held after the Notification dated 7-7-1993, and as such holding of the election to the seat held by the petitioner before expiry of 6 years period, was wholly unconstitutional. It is not disputed by the learned counsel for the petitioner that if the period of 6 years is computed from the date of election of Haji Ibrahim against this seat the period of 6 years would expire on 20-3-1994. The learned counsel however, contended that the election of Haji Ibrahim was declared void by the Election Tribunal and this Court finally through its judgment dated 20-6-1993 declared the petitioner elected, therefore the period of 6 years should be counted from 29-6-1993. The contention of the learned counsel for the petitioner does appear to be correct.
5. Article 59 of the Constitution reads as under:-- "59.--(1) The Senate shall consist of (eighty-seven) members, of whom,--
(a) fourteen shall be elected by the members of each Provincial Assembly.
(b) (eight) shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly.
(c) (three) shall be (elected) from the Federal Capital in such manner as the President may, by Order, prescribe (; and)
(d) five shall be elected by the members of each Provincial Assembly to represent ulema, technocrates and other professionals).
(2) Election to fill seats in the Senate allocated to each province shall be held in accordance with the system of proportional representation by means of the single transferable vote.
(3) The Senate shall not be subject to dissolution but the term of its members, who shall retire as follows, shall be six years:-
(a) of the members referred to in paragraph (a) of clause (1), seven shall retire after the expiration of the first three years and seven shall retire after the expiration of the next three years;
(b) of the members referred to in paragraph (b) of the aforesaid clause, four shall retire after the expiration of the first three years and four shall retire after the expiration of the next three years;
(c) of the members referred to in paragraph (c) of the aforesaid clause, one shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years; and
(d) of the members referred to in paragraph (d) of the aforesaid 'clause, two shall retire after the expiration of the first three years and three shall retire after the expiration of the next three years: ' Provided that the term of office of a person elected to fill a casual vacancy shall be the unexpired terms of the member whose vacancy he has filled.)"
6. ' Proviso to clause 3 of Article 59 ibid clearly provides that the term of office of a person elected to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled. No doubt the expression "casual vacancy" is not defined in the Constitution but this provision is to be read with sections 77 and 82 of the Act which deals with the procedure of filling a casual vacancy and the terms of the office of a member of the Senate. Section 77 of Act provides that if the seat of a member of the Senate becomes vacant or is declared vacant or his election is declared void, before expiry of the term of his office, the Commission shall hold election to fill the vacancy. Section 82 of the Act which provides for the date of commencement of the office of a member of Senate reads as follows:-- "82. Term of office. --(1) The term of office of a member of the Senate shall commence on the date of the first meeting of the Senate held after the names of the persons elected to the Senate are notified by the Election Commission: ' Provided that the term of office of a member elected in the year 1973 and having a term of four years shall expire after completion of four years from the date of making the oath under Article 65.
(2) If the election of a member is declared void and another candidate is declared to have been duly elected in his place, the term of such candidate shall be the unexpired term of such member.
(3) If the election of all the members declared elected under section 18 or section 25 is declared void, the term of the members elected in their places shall be the unexpired term of the members whose election is declared void."
7. From reading of the proviso to Article 59 (3) of the Constitution with sections 77 and 82 of the Act, it is quite clear that if the election of a member is declared void and another person is declared elected in his place, the term of such elected member hall be the unexpired term of the member whose election is declared void. The learned counsel for the petitioner is unable to demonstrate that the above-referred provisions of the Act are in any way in conflict with the provisions of Article 59 of the Constitution. The petitioner having been declared elected to Senate after unseating Haji Ibrahim Hingorjo who was earlier elected, his terms could not extend beyond the unexpired period of the seat against which Haji Ibrahim was elected. There is no merit in this petition, which is, accordingly, dismissed and leave is refused.