' AJMAL MIAN, C.J.---This is a petition for leave to appeal against the judgment dated 9-2-1998 of a Full Bench of the Lahore High Court comprising three learned Judges passed in Writ Petition No,29141 of 1997, filed by respondent No,1 against the rejection of his nomination papers for the office of the President of Pakistan by the learned Acting Chief Election Commissioner acting as Returning Officer under the Presidential Election Rules, 1988, hereinafter referred to as the Rules, allowing the same as under:-- "29. For the aforesaid reasons, we, by our short order, dated 9-2-1998, accepted Writ Petition No,29141 of 1997 and declared the impugned order, dated 18-12-1997, of respondent No,1, to be without lawful authority and any legal effect and also held that the petitioner (Senator Justice
(Retd) Muhammad Rafiq Tarar) was qualified candidate to contest the election to the Office of President of Pakistan, in view of Article 41 read with Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 and dismissed the connected writ petitions."
2. The brief facts are that after the resignation of Sardar Farooq Ahmed Khan Leghari from the office of the President of Pakistan the learned Acting Chief Election Commissioner, pursuant to Article 41(5) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, invited nomination papers to fill in the above vacancy. Respondent No,1, Justice (Retd.) Muhammad Rafiq Tarar, who was then a sitting Senator, was nominated by the Pakistan Muslim League (Nawaz Group) as its candidate while the Petitioner, Mr. Aftab Shahban Mirani, a sitting M.N.A., was nominated by the Pakistan People's Party as its candidate. Certain other persons also filed nomination papers but the same were not accepted as inter alia the requirement that a candidate should be proposed and seconded by members of the electoral college for the election of the President was not fulfilled.
3. It appears that on 18-12-1997 when the learned Acting Chief Election Commissioner in the capacity of the Returning Officer was scrutinizing the nomination papers of respondent No,1, the Petitioner raized objection to the effect that respondent No,1 was disqualified from being a candidate for the office of the President in view of his interview published in weekly Urdu "Takbeer" dated 27-6-1997, whereby he allegedly propagated an opinion which defamed and brought into ridicule the Judiciary, and thus, acted in a manner prejudicial to the integrity and principles of the Judiciary of Pakistan. It may further be stated that one, Shamim Ahmed, also raised objection to the candidature of respondent No,1 on account of his alleged interview published in Urdu daily newspaper "Jang" of Rawalpindi on 4-12-1997. The above objection prevailed with the learned Returning Officer, who by his order dated 18-12-1997, concluded as follows:-- "7. For the foregoing reasons, I am of the view that case of Mr. Muhammad Rafiq Tarar is covered by sub-clause (g) of clause (1) of Article 63 of the Constitution of Pakistan and since he cannot be elected as member of the Parliament, hence in terms of Article 41(2) of the Constitution of Pakistan, he cannot be elected as President of Pakistan. I, therefore, reject his nomination papers."
4. Thereupon, respondent No,1 filed aforesaid writ petition in the Lahore High Court and obtained an interlocutory order on 19-12-1997 directing the learned Acting Chief Election Commissioner to allow respondent No,1 to participate in the election of the President of Pakistan subject to the result of writ petition. It may also be stated that the election to the office of the President of Pakistan was held on 31-12-1997. Respondent No,1 secured 642 valid votes (374 calculated votes)_ and was declared successful. After that respondent No,1 assumed the office of the President of Pakistan on 1-1-1998.
5. When the aforementioned writ petition came up for hearing, a Full Bench of the Lahore High Court allowed the same in the above terms. The petitioner being aggrieved by the aforesaid judgment has filed the present petition for leave to appeal in this Court.
6. According to the office objection, the above petition is barred by time by seven days for the reason that the order was passed by the High Court on 9-2-1998; the petitioner applied for its certified copy on 2-3-1998 and the same was supplied to him on 16-4-1998. The petitioner is, therefore, entitled under section 12 of the Limitation Act, 1908, to exclude the period commencing from 2-3-1998 to 16-4-1998 i.e, 46 days; whereas the above petition was filed in this Court on 2-6- 1998, If we add the period of limitation for filing of a petition for leave to appeal, namely, 60 days with the aforesaid 46 days(excluded under section 12 of the Limitation Act), the admissible total period comes to 106 days; whereas the above petition was filed in this Court after 113 days, and thus, it is barred by time by 7 days. However, Mr. Masud Kausar learned Advocate Supreme Court appearing for the petitioner, has submitted that the reasons for the short order were released on 15-4-1998 and, therefore, the period prior to the above date should also be excluded. This could have been excluded if the petitioner would have applied for a certified copy on 9-2-1998. Since admittedly no application for certified copy was made by the petitioner on the above date, the aforesaid period cannot be excluded.
7. The petitioner has not filed any application for condonation of the above delay though it is a well-settled proposition of law that delay of each day is to be explained in filing of a petition for leave to appeal beyond the limitation period. Reference may be made in this regard to the following cases:--
(i) Ahmad Din versus Mst. Rasul Bibi (PLD 1968 SC 213);
(ii) Zahoor Elahi versus S. Fazal-ur-Rehman and another (1969 SCMR 274);
(iii) Mst. Allah Rakhi versus Irshad Bibi (1994 SCMR 2244);
(iv) Muhammad Nawaz versus Abdus Salam and another (PLD 1997 SC 563).
8. In this view of the matter, the above petition is liable to be dismissed on the question of limitation. However, we have heard Mr. Masud Kausar, learned Advocate Supreme Court for the petitioner, on merits. Before dealing with the submissions we may state that he requested for adjournment, which request we declined as the petitioner had obtained adjournment on 15-6- 1998; the petition was adjourned to 23-6-1998 and then again on the latter date, on his request, the case was adjourned for today. It was made clear that no further adjournment would be granted.
We might have even today acceded to the petitioner's counsel's aforesaid request, but it was not possible for the reasons, firstly, that from the next week the cases challenging the Emergency are fixed before a Full Bench of this Court and, secondly, the next week is the last working week of the Court before the commencement of the summer vacation.
9. Mr. Masud Kausar, learned Advocate Supreme Court appearing for the petitioner, has submitted that the impugned judgment has dilated upon the various Constitutional questions of public importance and, therefore, this Court should grant leave as it is a case of first impression on the said questions.
10. We asked him to satisfy us on one question, namely, as to how a sitting Senator could have been declared as not qualified to be a member of the National Assembly in a summary enquiry under rule 5 of the Rules in view of clause (2) of Article 63 of the Constitution. His reply was that notwithstanding the rejection of nomination papers of respondent No,1 on the ground that he was not qualified to be a member of the Parliament, he would not have ceased/ to be a member of the Senate. It will be appropriate at this stage to reproduce clause (2) of Article 41, clause (1) (g) and clause (2) of Article 63 of the Constitution, and rule 5 of the Rules, which read as under:-- Clause (2) of Article 41 of the Constitution.
"(2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly."
Clause 1 (g) and clause (2) of Article 63 of the Constitution.
"63. (1) A person shasll be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora (Parliament), if--- a) b) c) d) e) f) g) he is propagating any opinion, or acting in any manner, prejudicial to the Idealogy of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan;
(2) If any question arises whether a member of the Majils-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.'
Rule 5 of the Rules.
"5. Scrutiny. ---(1) The Returning Officer shall give reasonable opportunity to each candidate, his proposer or seconder or his authorised agent for examining the nomination papers forwarded to him under paragraph 4 of the Schedule.
(2) The Returning Officer shall, in the presence of persons attending the scrutiny under paragraph 5 of the Schedule, examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject any nomination paper if he is satisfied that---
(a) the candidate is not qualified under the Constitution to be elected as President, or is subject to any disqualification from being elected as, and from being, a member of the National Assembly;
(b) the proposer or the seconder is not a voter;
(c) the signature of the proposer or the seconder is not genuine;
(d) the nomination was not filed before noon on the date fixed for the nomination of candidate;
(e) any provision of rule 3 or sub-rule (1) or rule 4 has not been complied with; or
(f) the same proposer or the seconder has subscribed to more than one nomination paper; ' Provided that---
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature, and may allow such defect to be remedied forthwith; and
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, certified copy of which accompanies the nomination, or in the list of voters.
(4) The Returning Officer shall endorse on every nomination paper his decision accepting or rejecting it and shall, in the case of rejection, record a brief statement of reasons therefor.
(5) The decision of the Returning Officer accepting or rejecting a nomination paper shall be final.
(6) The Returning Officer shall draw up a list of candidates whose nominations have been accepted and publish it in form II."
'A perusal of aforequoted clause (2) of Article 41 of the Constitution indicates that a person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age and is qualified to be elected as member of the National Assembly.
' It may be noticed that the opening portion of clause (1) of Article 63 of the Constitution lays down that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majilis-e-Shoora (Parliament), if he is covered by sub-clauses (a) to (p) thereof. It may further be noticed that sub-clause (g) provides that a person shall be disqualified from being elected or chosen and from being a member of the Majlis-e-Shoora (Parliament) if he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan.
' It may also be noticed that clause (2) of Article 63 provides the mechanism for determining, whether a person is disqualified from being elected or chosen as and from being a member of the Majlis-e-Shoora (Parliament) by providing that if any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and this seat shall become vacant.
' The above clause has been the subject matter of interpretation by this Court in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66), wherein the majority view was that no other forum than the forum provided in the aforesaid e clause (2) was competent to adjudicate upon the above question and the following observations were made :-- "28. On 25th March, 1969 Martial Law was proclaimed in the country and the Constitution of 1962 was abrogated, but all the laws including Ordinances, Martial Law Regulations, Order and Rules, enforced immediately before abrogation of the Constitution, were allowed to continue in force.
Thereafter, elections were held in the country on the basis of the political parties and finally the Constitution of Islamic Republic of Pakistan, 1973 was framed and promulgated. At that time, the Political Parties Act, 1962 was in force and section 8(2) thereof, as reproduced in the original form, held the field. Under Article 62 of this Constitution qualifications for membership of Parliament and under Article 63 disqualifications are prescribed. Article 63 (2) provides the forum of the Chief 'Election Commissioner to determine the question whether a member has become disqualified or not after such question is referred to him by the Speaker or the Chairman, as the case may be.
Even at that time there was anxiety to control floor-crossing, which was reflected in Article 96 of the Constitution, which provided for vote of no-confidence against the Prime Minister. Proviso to sub- Article (5) of Article 96 is reproduced as under:-- ............ Provided that, for a period of ten years from the commencing day or the holding of the second general election to the National Assembly whichever occurs later, the vote of a member, elected to the National Assembly as a candidate or nominee of a political party, cast in support of a resolution for a vote of no confidence shall be disregarded if the majority of the members of that political party in the National Assembly has cast its votes against the passing of such resolution.'
' It may further be observed that the abovequoted Rule 5 inter alia provides in sub-rule (3) that the returning officer may, either of his own motion or upon any objection, conduct such summary inquiry as he may think fit and reject any nomination paper if he is inter alia satisfied that the candidate is not qualified under the Constitution to be elected as the President, or is subject to any disqualification from being elected as, and from being, a member of the National Assembly. It may further be noticed that above sub-rule also inter envisages that the Returning Officer shall not enquire into the correctness or validity of any entry in the Electoral roll, certified copy of which accompanies the nomination, or in the list of voters. It may also be noticed that ' aforementioned sub-rule provides that the decision of the Returning Officer accepting or rejecting a nomination paper shall be final.
11. We are inclined to hold that if a sitting Senator or a sitting M.N.A. Is a candidate for the office of the President, he is qualified to be a candidate in terms of clause (2) of the Article 41 of the Constitution till the time he is non-seated through the mechanism provided in clause (2) of Article 63 of the Constitution. The Returning Officer had no jurisdiction to hold that respondent No,1 had been disqualified to be a member of the Parliament on account of the aforesaid alleged interview as has been held in the abovequoted extract from the judgment in the case of Pir Sabir Shah v.
Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (supra).
' We are unable to subscribe to the submission of Mr. Masud Kausar that though respondent No,1 would have remained a member of the Senate but could not have been a candidate for the office of the President of Pakistan in terms of clause (2) of Article 41 of the Constitution. The above contention is not tenable in view of aforesaid clause (2) of Article 63 of the Constitution.
Additionally, in our view, since the scope of summary inquiry referred to in sub-rule (3) of Rule 5 of the Rules is very limited, the disqualification should be of the nature which is patent and which needs no detailed inquiry. It may further be observed that under third proviso to sub-clause (0 of sub-rule (3) of rule 5, it has been expressly provided that the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, certified copy of which accompanies the nomination, or in the list of voters. In the present case the for the election of the office of President are the members of both the Houses and of the Provincial Assemblies who constitute the electoral college in terms of clause (3) of Article 41 of the Constitution. It is, therefore, evident that it view of aforesaid third proviso to clause (0 of sub-rule (3) of Rule 5 of the Rules, it was not open to the Returning Officer to have enquired into the correctness or validity of any entry in the electoral roll, certified copy of which accompanies the nomination, or in the list of voters. The above proviso reinforces our above conclusion as to the effect of clause (2) of Article 63 of the Constitution. It also demonstrates the nature of summary inquiry referred to in sub-rule (3) of Rule 5 of the Rules.
12. From the record, it seems that though respondent No,1 had not disputed the factum of his giving an interview to weekly Urdu "Takbeer' but it was stated on his behalf that his certain replies were twisted. The correctness of the alleged interview published in daily Urdu newspaper "Jang" of Rawalpindi dated 4-12-1997 was also not admitted. However, Mr. Masud Kausar has urged that respondent No,1 has not refuted the correctness of the above interview appeared in weekly Urdu "Takbeer' of 23rd June, 1996, till today from the date of raising of the aforesaid objection before the Returning Officer. In our view, since the matter was sub judice before the Courts, it would not have been proper on the part of respondent No,1 to have issued any contradiction in this behalf. We may observe that simpliciter the fact that a person does not deny the correctness of a statement attributed to him in a press report or in an interview is not sufficient to conclude that the alleged statement attributed to him was factually made by him in its entirely. If we were to accept the press reports as the basis for non-seating a sitting member of the Parliament, in our view, quite a number of members particularly the galaxy of the political leaders shall stand non-seated as in the past a number of statements derogatory to the Judiciary attributed to the leading politicians appeared in the press. It may be observed that by now it is a well-settled proposition that a person cannot be condemned without providing him a fair opportunity to meet the allegation. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memmon and 16 others (PLD 1993 SC 341), wherein after referring certain case law the following conclusion was recorded by this Court as to the right of access to Courts and justice:-- "12 Another aspect of the case is that by these provisions the rights of access to Courts and justice has been denied. This by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law. An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice. This aspect of the case was considered in Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989 Karachi 404) when after referring to Syed Abul A'la Maudoodi's case (PLD 1964 SC 673 at 710) and Ms. Benazir Bhutto's case (PLD 1989 SC 416) had observed as follows:-- ' The right of ' access to justice to all' is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of ' due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to 'have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol.II at page 1709 where the term 'due process of law' has been summarised as follows:--
(1) He shall have, due notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction."
13. The above extract indicates what are the basic requirements of the doctrine "due process of law", which is enshrined inter alia in Article 4 of our Constitution. It is intrinsically linked with the right to have access to justice, which this Court has held inter alia in the above report as a fundamental right. This right inter alia includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him. In the instant case the Returning Officer was seized of the question, whether respondent No,1 was qualified to be a candidate for the office of the President. His decision that respondent No,1 was not qualified to be elected as a member of the Parliament would have entailed his non-seating as a member of the Senate, which was a question of the nature, which could not have been adjudicated upon in a summary inquiry under Rule 5(3)(a) of the rules, particularly when the correctness of the contents of the interview was not admitted by respondent No, 1.
14. The alleged interview was given by respondent No,1 as far back as on 23-6-1996 when he was not even a member of the Senate. We may point out that no objection was raised when respondent No,1 contested the Senate Election. The objection was raised on or about 18-12-1997 i.e. After nearly one and a half years at the time of scrutiny of the nomination papers. Respondent No,1 was not issued any show-cause notice. His Advocate was asked then and there to say, whether respondent No,1 had given the alleged interview, td which his reply was that factually respondent No,1 had given the interview in question but his certain replies were twisted. The above objection was upheld without providing to respondent No,1 a reasonable opportunity to show that factually certain replies were twisted or did not reflect what he stated.
15. Before concluding the above order, we may point out that in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299) this Court has highlighted the election matters in which the High Court could interfere with by invoking its Constitutional jurisdiction by observing as follows:-- "The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution.
However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove."
16. In the present case if respondent No,1 would not have been allowed by the High Court to participate in the election for the office of the President of Pakistan, he would have no remedy available and in fact he would have been ousted from the arena of the election for the above office. The case like the one in hand is covered by the above principle enunciated in the aforequoted extract from the aforesaid judgment. In our view, it is not necssary to deal with the other Constitutional points referred to in the impugned judgment for the purpose of decision of this petition for leave to appeal as the above grounds discussed hereinabove are sufficient to decline leave.
17. The upshot of the above discussion is that leave to appeal is refused and the petition is dismissed.
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