ORDER IHSAN-UL-HA U E CHAUDHARY, J.- This is petition under Section 76-A of the Representation of People Act, 1976 (hereinafter to be referred as Act of 1976) as amended up-to-date. Notice was issued to the respondents. Respondent No. 1 has appeared through Rana Muhammad Arshad Khan, Advocate and; respondent No. 3 is represented by syed Niaz Ali Shah, Addl A.G while, respondent No. 2 did not appear, therefore, was proceeded ex parte.
2. Rana Muhammad Arshad Khan, learned counsel for respondent No. 1, returned candidate, has raised a preliminary objection to the effect that Section 76-A of Act, 1976 was added through Ordinance X V1111 of 1997, which came into force on'31.1,1997. The Ordinance expired after. Four months in view of the provisions of Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973. The same was notice re-promulgated nor enacted by Parliament as Act. I
3. . On the other hand, learned counsel lor the petitioner argued that the amendment brought through Ordinance continued even after repeal of the said Ordinance. In this behalf, he . Has referred to Government of Punjab through Secretary Home Department v. Zia Ullah Khan and 2- others (1992 SCM R 602). It is added that respondent not had not declared 8 kanals plot situated at G.T. Road whereupon he had constructed godowns. It. Is submitted .That the respondent has under valued his house at serial No: 6 of annexure 'D', situated at. G.T. Road, which according total /s Anwar Gohar Associates is worth over Rs. -30,000,00/-. Similarly, the said respondent did not disclose his account in A.B.L. Islamabad, therefore, it is a fit case for exercise -of suo-motu jurisdiction. No other point was argued.
4. The learned Addl-Advocate General submitted that the petitioner was ill advised to file this petition. He should have filed an election petition before the Chief Election Commissioner of Pakistan under Section 52 of Act of 1976.
5. Rana Mohammad Ar$had Khan, Advocate while summing up the arguments explained that the only remedy available to the petitioner was election petition under Section 52 of Act, 1976 and no election can be called into question except through election petition under the said provision. It is added that respondent No. 1 has not made any concealment of any property. The allegations are false and cooked up. It is argued that the land measuring 8 kanals situated at G.T. Road, udder the godowns belonged to Ameer Afzal as was clear from annexure 'C with the petition and not the respondent No. 1. It is added that the petitioner has wrongly referred to house at serial NO. 6 in annexure 'D'. In fact pis reference is to house at serial NO. 3 of the said annexure. The same is situated in village and its valuation has been correctly given as Rs. 9,00,000/-. It is argued that the allegations as to account in A.B.L. Islamabad are vague and incorrect. It is submitted that list of the properties annexure 'D' was submitted by his client alongwith his nomination papers. The petitioner failed to raise any objection to that same. Thereafter, his nomination was accepted and that order was not challenged before Tribunal through an appeal under Section 14(5) of Act, 1976. It is argued that this was a dispute at the stage of scrutiny of the nomination and could not be even raised in election petition under Section 52 of Act, 1976. The arguments arc summed up with the submission that the petitioner has failed to make out any case for exercise of suo motu jurisdiction by this Tribunal under Section 76-A, addedly Ordinance XVII of 1997.
6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedent case. This Tribunal could invoke the powers under Section 76-A of Act, 1976 only in the cases where 'on the basis of some material or an information it was of the opinion that returned candidate was a defaulter of loan, taxes, Government dues or utility charges, or has submitted a false or incorrect declaration regarding the payment^ of loans, taxes Government dues or utility charges under Section l2 of Act of 1976. The allegations, as noted above, do not make out a case for exercise of suo motu jurisdiction under Section 76-A of Act, 1976, as added by Ordinance XVII of 1977.
7. Now coming to the preliminary objection that the Ordinance XVIH of 1997 has lapsed, therefore, this Court has no suo motu jurisdiction and the petition is liable to be dismissed on this short ground alone. The power of the President to promulgate Ordinances is subject matter of Article 89 of Constitution of 1973. The same reads as under;- "89. (1) The President may, except when the National Assembly i& in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. , (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of Majilis-e-Shoora. (Parliament) and shall be subject to like restrictions as the power of Majlis-e- Shoora (Parliament) to make law, but every such Ordinance.
(a) shall be laid- - (i) before the National Assembly if it-contains provisions dealing with all or any of the matters specified in clause (2) or Article 73, and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of. That period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution;
(ii) before both Houses if it docs not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and
(b) may be-withdrawn at any time by the President.
(3) Without prejudice to the provisions ol clause (2), an Ordinance laid before the Natricine Assembly shall be deemed to be a Bill introduced in the National Assembly."
It is clear from the above Article that if President was- satisfied that circumstances existed which warranted immediate action and the National Assembly was not in session, the President could promulgate an Ordinance. The same, if it is a money bill, shall be laid before the National Assembly and shall stand repealed on expiration of four months from its promulgation or before the expiration of this period with the passing of a resolution of disapproval by the National Assembly.
While other Ordinances shall stand repealed on the expiration of four months from its promulgation or if before the expiration a resolution of disapproval is passed by either of the two Houses of the Parliament. The Ordinance XVIH was promulgated on 31.1.1997. The same has not been passed by the Parliament so far, therefore, in view of sub-article 2(a)(i) of Article 89 of Constitution of 1973 it expired on 3L5.1997. The power of the Tribunal to pass orders suo motu came to an end with its expiry.
8. The learned counsel for the petitioner argued that once a law is enacted then its repeal shall not effect the constitution of any such amendment made by the enactment so repealed. He in this behalf has referred to Section 6A of General Clauses Act and relied on the judgment in the case of Zia-Ullah Khan and 2 others (Supra), which if gone through minutely, would support the other view.
It was clearly held by the Hon'ble Supreme Court in the precedent case that provisions of Section 6A of the General Clauses Act were not available for the interpretation of the Constitution. On the other hand, the matter would be governed by Article 264 of Constitution of 1973, which inter alia, provided that where law was repealed or was deemed to have been repealed, by, under, or by virtue of Constitution. The repeal shall not except as otherwise provided by the Constitution, affect the previous operation of law or anything duly done or suffered under the law. Mr. Justice Amal Mian, the learned author of the leading judgment in this case, compared both the provisions and held as under: - "11. It may be mentioned that since there Is no corresponding provision in the Constitution, the General Clauses Act cannot be pressed into service in the instant case, as has been rightly conceded by Mr. Irfan Qadir. However, his submission was that the above clause (h) of Article 264 of the Constitution can be equated with Section 6-A of the General Clauses Act. In our view the above contention is not tenable as in fact, Section 6 of the General Clauses Act, and not its Section 6- A, is couched in terms of Article 264 of the Constitution, which is evident, if we were to place the above two provisions in juxtaposition."
The Hon'ble Supreme Court in the case of Mahreen Zaibun-Nisa v. Land Commissioner. Multan and others (PLD 1975 SC 397) held that the Ordinance is essentially in nature of temporary legislation and its future operation, is made conditional to approval of the Assembly. I am fortified in my view by the judgment of this Court in the case of The State v. Muhammad Sharif (PLD 1960 Lahore 236).
The relevant portion reads as under: - "9...... When a temporary statute repeals a permanent statute, the repeal remains effective only till the life of the temporary statute and when the temporary statute expires, the permanent statute again C.C.597 emerges."
This view, was, confirmed by the Hon'ble Supreme Court in its judgment in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P, and another (PLD 1995 SC 66,.
Suffice it is to refer here following para of the judgment of Mr. Justice Saiduzzanian Siddiqui:- "In view of the above discussed legal position there is no doubt in my mind that on the repeal of Ordinance XXX of 1993, which was never placed before the Assembly for approval and which stood repealed on the expiry of 4 months period from the date of its promulgation in - accordance with the provisions of Article 89 ibid, the amendment introduced in Section 8-B by Ordinance XXX of 1993 stood removed from the statute book with the consequence the original provisions of Section 8-B of the Act stood revived on such repeal. Therefore, the original Section 8-B was enforced both at the time the two references were filed before Election Commission and the present appeals were ' filed before this Court. The appeals, accordingly, were competently, filed before this Court under sub-clause (3) of Section 8-B of the Act.
Earlier to this reference was made to observations of Privy Council in the case of Goo derham and Worts Ltd. v. Canadian Broadcasting Corporation (AIR 1949 PC 90). The relevant portion of that judgment reads as under: - " The repeal effected by the temporary legislation was only a temporary repeal. When by the fiat of Parliament the temporary repeal expired the original legislation automatically resumed its full force." '
9. The Ordinance XVIH of 1997 has since expired on 31.5.1997, therefore, Section 76-A of Act, 1976 would not. Be deemed part of the statute book. This Tribunal ceased to possess suo motu powers to call upon respondent No. 2, returned candidate, to show cause why his election should not be declared void.
10. The upshot of the above discussion is that the request to take action in suo motu jurisdiction is declined.