' SYED MANZOOR HUSSAIN GILLANI, J.--This is an application for ad interim relief filed by the petitioner in Writ Petition No,127 of 1993 filed by him on December 1, 1993.
2. Before coming to the points listed in the application for ad interim injunction, a brief resume of the facts mentioned in the application may be stated here.
3. The President on the advice of the Prime Minister, dissolved the Assembly on 30-3-1991 and the date for general elections was fixed as 29-6-1991. The petitioner in view of section 29(8) of the Constitution, continued in his office as Speaker till the general elections to the Assembly were held on 29-6-1991. As a consequence of the general election held in 1991, the respondents (some of whom have died and some of them vacated the offices) were elected as the members of the Legislative Assembly and respondent No,52 was elected as member of the Azad Jammu and Kashmir Council.
4. The members of the Assembly under section 23 of the Constitution are obliged to take oath as prescribed by Schedule I of the Constitution before the Speaker or a person nominated by the President under rule 5 of Azad Jammu and Kashmir Legislative Assembly Procedure Rules, 1989.
According to the petitioner, the then President of Azad Jammu and Kashmir Sardar Muhammad Abdul Qayyum Khan respondent No,1 issued a Notification on 17-7-1991 nominating Raja Zulqarnain Khan to administer the oath to the newly elected members of the Assembly. The petitioner has alleged in the petition that as he was continuing in the office as Speaker on 29-7-1991 he alone was competent to administer the oath to the members. The Notification of the President dated 17-7-1991 authorizing Raja Zulqarnain Khan to administer the oath, is without lawful authority and all the respondents who are sitting in the Assembly and hold the office as member of the Assembly are holding office without lawful authority as they have not taken oath of their offices before the competent person. According to the petitioner, he being the Speaker of the Assembly was alone competent to administer oath to them. The main petition is pending in the Court and is fixed for replication for 26th instant.
5. The petitioner filed an application in the Court on 16-5-1996 requesting for issuance of an order of status quo restraining the respondents Nos.1 to 48 not to act and perform any function as members of the Legislative Assembly till the decision of the writ petition and particularly for restraining them from participating in the Presidential Election in Azad Jammu and Kashmir, which, as stated in the application, are going to take place in near future. The petitioner alleges that as his petition stands admitted for regular hearing, he has a prima facie case and would suffer irreparable loss if the respondents are not restrained from participating in the Presidential Election.
6. A notice was issued to the Advocates for respondents for filing the objections to the application.
The objections were filed and the arguments on the stay application were heard. The learned counsel for the petitioner arguing the case contended that the petitioner was the Speaker of the dissolved Assembly when the respondents Nos.1 to 48 were elected as members of the Assembly and were notified as such. According to the learned counsel, under section 23 of the Constitution read with Schedule I and rule 5 of the Assembly Procedure Rules, it was the Speaker i,e, petitioner only, who was competent to administer the oath of office to the elected members. Since he never administered the oath to the respondents as members of the Assembly, all the members of the Assembly performing their functions and their sitting in the Assembly is without lawful authority and are not eligible to participate in any proceeding of the Assembly, particularly their voting for the Presidential election scheduled to be held in near future. The learned counsel referring to section 25(c) of the Constitution, contended that as the members have not taken oath as visualized above, their seats are vacant and they are .Not qualified to vote in the Presidential elections.
7. The learned Advocate for respondents, Raja Muhammad Hanif Khan contended that the petitioner in view of his conduct is debarred from seeking the assistance of the Court for the reason that he has filed the petition in December, 1993, while the members of the Assembly i,e, respondents have entered into the office on 29-7-1991. The learned counsel referring to a TA Bill of the petitioner contended that on 29-7-1991 when the oath was to be administered to the members, the petitioner was at Islamabad. According to the learned counsel a fact was earlier brought to the notice of outgoing President i,e, Sardar Muhammad Abdul Qayyum Khan that Sahibzada Ishaq Zafar, who was Speaker of the dissolved Assembly, has stated that he would not administer the oath to the newly members, in view of which, the President issued a Notification on 17-7-1991 nominating Raja Zulqarnain Khan to administer the oath of office to the elected members of the Assembly. The two affidavits one sworn by Sardar Muhammad Abdul Qayyum Khan and the other by Ghulam Ahmed Abbasi the Additional Secretary Assembly have been placed on record alongwith the written statement in this behalf. The learned counsel further contended that under these circumstances, the President, under rule 5 of the Assembly Procedure Rules was competent as well as justified to nominate any person for administering the oath to the elected members of the Assembly. Raja Zulqarnain Khan was thus nominated to administer the oath to the members of the Assembly in accordance with law and all the members of the Assembly are holding their offices in accordance with law and are qualified to take part in all the proceedings of the Assembly including their right to vote in the Presidential election. An electorate cannot be deprived of his right to vote, moreover the electoral college for the Presidential elections has Constitutional right to elect by their vote any person as the President. The learned counsel further contended that assuming the administering of oath by Raja Zulqamain Khan being defective, it would not affect the membership of the respondents. The learned counsel made reference to 1991 PCr.LJ 185 and 1991 MLD 1190. The learned counsel further contended that law favours the continuing of the process as it is, and not to disturb the continuation of the existing process, more so, when it is not against the law and rules. The learned counsel relied upon PLD 1978 Lahore 113, PLD 1992 Pesh. 76, 1992 CLC 1551, 1994 SCMR 2000, 1986 SCMR 48, 1988 SCMR 1185 and 1995 SCR 305.
8. As stated earlier that the petition is pending in the High Court and is fixed for 26th instant. Any finding on this point as argued by the learned counsel for the parties at bar, would ultimately affect the case which is yet to be decided and any opinion or finding if given in the light of the arguments, it would amount to prejudging the case which is against the spirit of law and canons of justice.
9. However, this application requires disposal in the light of the principles governing the issuance of ad interim injunction. The accepted principles for issuance of the ad interim relief/injunction are the prima facie case, the irreparable loss in case of non issuance of ad interim relief and the balance of convenience.
10. So far as the prima facie case is concerned, the petition having been admitted for regular hearing and the admission order having been maintained by the Supreme court on appeal, the prima facie arguable case is, no doubt there, but all the three conditions mentioned above have to coexist so as to issue an ad interim relief.
11. Before reverting to the other two factors, i,e, irreparable loss and the balance of convenience in respect of this case, it would be appropriate to reproduce here the following passages from the cases reported as "M/s Sui Northern Gas Pipeline Co. Ltd. v. M/s. Pakistan Cement Industries Ltd. PLD 1968 Lahore 876 as: "In matters of temporary injunctions, prima facie case is not the only requirement, but a Court is also required to examine the concepts of balance of convenience; irreparable loss; conduct of the parties; nature of suit; the time likely to be absorbed in it; the stakes of the parties involved and the work ability and reasonableness of the orders proposed to be passed. If by issuing an order it is intended to relieve a party from certain oppression care should be taken at the same time as not to create oppression for the other party. Similarly, the aim should be to prevent the recurrence of a future injury, if any, and not to grant compensation and damages for past alleged injuries." ' and Abdur Rehman Mubashar and 3 others v. Syed Amir Ali Shah Bukhari and 4 others PLD 1978 Lahore 113:-- "The jurisdiction under Order XXXIX, rules 1 and 2 is an equitable jurisdiction. The issue of injunction is a matter of grace and discretion. The question of irreparable loss and injury and balance of convenience have always been considered necessary for the satisfaction of conscience of the Court whether an injunction should issue or should be refused. However, laches is one of the grounds on which these questions have necessarily to be answered against the plaintiffs. The plaintiffs have not taken any objection to the existence of the mosque, or is being called as a mosque, to Azan being said in it, to prayer being performed by Qadianis in it individually or in congregation for the last several decades although the Muslims of the sub-continent have always unanimously considered Qadianis to be non-Muslims. They cannot, therefore, complain of suffering any injury muchless irreparable loss and injury. The balance of convenience is not, therefore, in favour of issuance of injunction. The injury on the other hand will be restrained from practising their religion. I am of the view that the application for temporary injunction should also have been dismissed."
12. Viewed the case of the applicant in the light of above principles, it would be hardly difficult to say that issuance of ad interim injunction would cause much harm, than ease the trouble. The petitioner who invoked the jurisdiction of the Court in December 1993 against a cause which took place in July, 1991 and then filed the present application in May 1996, is not going to suffer any loss in case the respondents participate in the Presidential election, as against the respondents.
Irreparable loss in the case would be to the respondents in case they are restrained. The balance of convenience is also in favour of respondents to continue with the functions of the Assembly as a component of the joint sitting and participate in the Presidential elections.
13. Without prejudice to the final determination of the case, the members of the present Assembly, according to the petitioner's own version have been elected in the general elections and have taken oath before a person nominated by the President whose authority is, no doubt still to be finally determined whether the oath was properly administered or not and whether they are holding seats in the Assembly properly or not, but the fact is that they have been performing the functions in the Assembly as such since 1991. Besides legislative business, some of the respondents are appointed as Ministers, Speaker, Deputy Speaker, Parliamentary Secretaries etc., it would amount to reversing the entire set-up for the satisfaction of a single person.
14. The members have taken oath from the person designated so by the President and after necessary arrangements in that behalf having been made by the Secretariat of the Assembly. The members are not expected to know the routine official administration business of the Secretariat of Assembly. It was sufficient to make them believe that the members elected have assembled in the building meant for the Assembly Session and the Secretariat of the Assembly having made arrangements for their seating and oath, their participation and taking upon themselves the oath was thus all in accordance with the requirements of the Assembly Procedure Rules. It was not for the members to inquire as to whether Raja Zulqarnain Khan was in fact competent to administer the oath. They were justified in believing so and taking upon themselves the oath keeping in view rule 5 of the Assembly Procedure Rules, where besides the Speaker a nominee of the President could also administer the oath. Notwithstanding that, the absence of the petitioner continuing as Speaker on the date of administering of the oath as stated in written statement, read with T.A. Bill of the petitioner, it was sufficient to make them believe that everything was alright. Since then they are functioning as such till. The day of filing the present application. No effort was made to restrain the respondents from performing the functions as such and not even taking the trouble of having the names of members dead and those vacating the offices from being removed from the list of respondents or by arraying subsequently elected member as respondents.
15. In the matter of elections, the Courts never favour the disfranchisement of the voters. The right of vote is most sacred right granted to the electorates whether in the general elections or in any other electoral college and this is to be ensured that the voters exercise that right without fear, under influence and coercion. The agencies of the State are expected to assist the voter to cast his vote in favour of the person of his own choice so that the democratic process is strengthened and straightened. No attempt thwarting the right can be favoured or permitted. The learned counsel for the applicant-petitioner has not been able to refer to even a single authority where an elected member or an electoral college is restrained from participating in the election or casting votes. We may refer here the following a few cases from the Pakistan jurisdiction where the request for stopping the elected members from performing the functions of the election office is always refused. "Col. (Retd.) Syed Mukhtar Hussain Shah. v. Waseem Sajjad 1986 SCMR 48; Muhammad Ishaq Dar v Shahid Nabi Malik 1994 SCMR 2000; Mst. Bakhi v. Election Tribunal and others 1988 SCMR 1185, a portion of the dictum from the Azad Kashmir jurisdiction in the case of Sardar Muhammad Abdur Rashid and others v. Chaudhry Sadaqat Ali and others 1995 SCMR 305 may be advantageously reproduced here:-- "In our view while dismissing the revision petition the learned Judge in the High Court has not violated, any principle of law on the subject of grant of interim relief. The observations made by the learned Judge are weighty. This Court does not interfere in the discretionary matters unless a principle of law has been violated or the order appealed from has resulted in grave injustice. We do not find that any such situation exists in the case. The respondents are functioning as office- bearers from July, 1993. If they are now restrained, as pointed out by the learned Judge in the High Court, the interest of the general body would suffer. We may note that the suit has been filed only by the contesting candidates and nobody from the electoral college, which is quite large in size, has come forward to challenge the elections."
16. Besides above, the learned counsel for the respondents has rightly contended that if the respondents are restrained from exercising their right of vote, it would amount to granting the ultimate relief at an interim stage to the petitioner because all that Court can ultimately order is to declare the offices vacant and if they are restrained from voting, it would practically amount to declaring their office vacant.
17. In our view besides what is stated above, the grant of ad interim injunction as prayed for would frustrate the provisions of sections 5 and 9 of the Constitution which respectively relates to the powers of the Chief Election Commissioner to conduct the elections to the office of President and right of electoral college to vote in the elections of the President besides the power as well as the duty of the Speaker to cause elections to the office of President occurring due to casual vacancy.
18. In view of above, the application stands rejected.
Application rejected.