' This order shall dispose of prayer for the grant of interim relief in W.P. No,29141 of 1997 filed by Senator Justice (Retd.), Muhammad Rafique Tarar, challenging the order of the Returning Officer/Chief Election Commissioner dated 18-12-1997 whereby the nomination papers of the petitioner for the election to the office of the President of Pakistan have been rejected on an objection raised by Mr. Aftab Shaban Mirani, respondent No,2.
2. This petition was admitted to regular hearing by one of us (Malik Muhammad Qayyum, J.) on 19- 12-1997 subject to notice to the respondents for 23-12-1997.
3. On 24-12-1997, the learned counsel for respondent 'No,2 sought 3 days time to file written statement which was granted. We indicated our intention to hear the case day to day and to decide the same before the forthcoming Presidential election. We heard the learned counsel for the petitioner yesterday and for about half an hour today, whereafter Mr.Iftikhar Ahmed, learned counsel for respondent No,2 started his arguments which continued till about 2-40 p.m. Mian Abdus Sattar Najam, Advocate has indicated that he and his colleague Mr. Iftikhar Ahmad, Advocate would require more than a day to complete their arguments. Mr.Ijaz Hussain Batalvi, learned counsel for the petitioner is also to be heard in reply. In these circumstances, despite our best efforts we are unable to complete the hearing of this petition and are therefore obliged to decide the question of interim relief as polling to the election of the office of President of Pakistan is scheduled to be held tomorrow.
4. Mr. Iftikhar Ahmed, learned counsel for respondent No,2 to be fair to him, has candidly stated that this Court should not stay the holding of the election or participation of the petitioner therein, but should instead direct the Chief Election Commissioner not to notify the result of the election.
5. Dr. A Basit, Advocate, who has filed the connected petition is, however, of the view that interim relief granted to the petitioner should be withdrawn. Some of the applicants who have tiled Miscellaneous applications for being impleaded as parties wanted us to postpone the election.
6. From a perusal of the order passed by the learned Returning Officer/Chief Election Commissioner, which has been impugned in this petition it will be seen that he has held that the petitioner suffers from disqualification mentioned in Article 63(1)(g) of the Constitution of Islamic Republic of Pakistan 1973 and is as such disqulified from being a Member of the National Assembly and, contesting the election to the office of the President of Pakistan.
7. Mr.Ljaz Hussain Batalvi, learned counsel for the petitioner has argued before us that the impugned order is based upon misreading of the record that there was no proper evidence to show that the petitioner had defamed or ridiculed the judiciary. He contended that the petitioner held the judiciary in highest esteem and that the interview which was published in the weekly "Takbeer" and the newspaper "Jang" did not wholly reflect the correct version and that in any case, there was nothing to show that the petitioner was propagating an opinion derogatory to the judiciary. In this behalf he has cited the case of Maulana Ghulam Dastgir and others v. Mrs. Banazir Bhutto 1991 CLC 571 which was decided by a Tribunal comprising 3 learned Judges of the Sindh High Court. He has further explained that after the aforesaid objectionable interview the petitioner was elected as senator without any objection and no question as to his disqulification was raised at any stage. It was emphasised that in view of Article 63(2) of the Constitution, question of disqualification of a Member of the Parliament could only be decided by the Chief Election Commissioner on a reference made by the Chairman of the Senate or the Speaker, as the case may be, and not otherwise.
8. In the last it was argued that in view of Article 41(2) of the Constitution the nomination of a candidate for the office of President is to be judged on the basis of qualifications mentioned in Article 62 of the Constitution and the" disqualifications enumerated in Article 63 of the Constitution have no relevance.
9. In reply, Mr. Iftikhar Ahmad, learned counsel for respondent No,2 has challenged the jurisdiction of this Court to entertain this petition and defended the impugned order on merits. According to him, the order of the Returning officer is final and its validity cannot be questioned under Article 41(6) of the Constitution.
10. As we have partly heard the learned counsel for the petitioner and learned counsel for Mr. Aftab Shahban Mirani, the main respondent, we would not like to make any definitive comments on the merits of the contentions raised by the learned counsel for the parties. For the present, suffice it to say that a reference to Article 41(2) of the Constitution shows that qualifications prescribed for a candidate to the election of the office of President are the same as that of a Member of National Assembly.Except to the extent mentioned in Article 41 itself, namely age. The qualifications of the candidate for the membership to Parliament are prescribed by Article 62 of the Constitution which is obvious from the heading of the provision itself. Article 63(1), on the other hand. Deals with disqualifications of a member. One of us (Malik Muhammad Qayyum, J.) had the occasion to consider this question in the case of Mian Muhammad Shahbaz Sharif v. Ch. Muhammad Altaf Hussain PLD 1995 Lah.
541. Though no final opinion was rendered therein but prima facie view taken was that qualifications and disqualification were two different concepts and while considering as to whether, a person was qualified to be elected or appointed to a particular office, the provisions regarding disqualifications could not be taken into consideration. While coming to that conclusion, the judgments of the superior Courts in Government of Pakistan v. Syed Akhlaq Hussain etc. PLD 1965 SC 527, Ghulam Abbas v. Additional Commissioner and Election Tribunal, Khairpur PLD 1965 (W.P.) Karachi 625 and Malik Hamid Sarfraz v. Federation of Pakistan and another PLD 1979 SC 991 were referred to.
11. Prima facie, therefore, we are of the view that the Returning Officer was not justified in rejecting the petitioner's nomination on the basis of Article 63(1)(g) of the Constitution of Islamic Republic of Pakistan, 1973. Furthermore, to us it appears to be anomalous, at least at this stage, to hold that though the petitioner may continue to be a Member of the Parliament yet he is not qualified to be elected as President. Tentatively speaking, this question could only be considered by the Chief Election Commissioner on a reference made by the Chairman of the Senate under Article 63(2) of the Constitution.
12. So far as the question of jurisdiction is concerned, it is true that Article 41(6) provides that the validity of the election to the office of the President shall not be called in question in any Court but it is too late in the day to argue that a blanket cover is provided to all sorts of acts taken by the functionaries, even though the same may be violative of the law and the Constitution. It has been repeatedly held by the Supreme Court of Pakistan that if a particular act is void, coram non judice or suffers from any jurisdictional error then notwithstanding the validity granted even by the Constitution, it can be struck down by the Court. If any authority is needed, reference may be made to Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738, Federation of Pakistan and others v. Ghulam Mustafa Khar PLD 1989 SC 26 and Mahmood Khan Achakzai and others v.
Federation of Pakistan PLD 1997 SC 426.
13. We may also state that though the Supreme Court of Pakistan on the basis of Article 225 of the Constitution held that the dispute as to the election could not be raised in a petition under Article 199 of the Constitution which was subject to Article 225 but a departure was made in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer 1994 SCM R 1299 wherein it was held that if the impugned action was patently illegal or without jurisdiction and the effect of which was to disfranchise a candidate he could press into service the Constitutional jurisdiction of this Court notwithstanding Article 225 of the Constitution. A Full Bench of this Court in W.P. No,3783 of 1997, titled Jawad Ali Khan v. Mian Umar'Ali, had quashed the order of Election Commission of Pakistan of recounting of votes. The judgment of this Court was assailed in the Supreme Court of Pakistan in C.P.S.L.A. No,1189/L/97 which was dismissed.
14. As already indicated above, the petitioner's nomination had been rejected on an objection taken by Mr.Aftab Shahban Mirani, respondent No,2 herein, whose learned counsel Mr.Iftikhar Ahmed has not opposed before us the permission granted to the 'petitioner by the interim order to participate in the election scheduled to be held tomorrow. That being so, we do not see as to how, Dr. A Basit, Advocate, who represents Mr.Amir Ali Pattiwala who had not objected to the nomination of Mr. Tarar before the Chief Election Commissioner/Returning Officer, can seek vacation of interim relief.
15. So far as the request of Mr. Iftikhar Ahmad, learned counsel for respondent No, 2, that the Chief Election Commissioner of Pakistan be restrained from notifying the result of the election is concerned, we are not inclined to grant the same in view of the law declared by the Supreme Court of Pakistan in the cases of Muhammad Ishaq Dar v. Shahid Nabi Malik etc. 1994 SCM R 2000 and Syed Masroor Ahsan v. Muhammad Tariq Chaudhary etc. 1991 SCM R 668. In the first-mentioned case, this Court had while considering the Constitutional petition challenging the candidature of Mr.Muhammad lshaq Dar passed an interim order that though election to the seat in the National Assembly may be held but notification should not be issued. That order was vacated by the Supreme Court of Pakistan. In the second case, the petitioner Syed Masroor Ahsan was put under a restraint by the High Court from taking oath as a Senator but that order too was set aside by the Supreme Court of Pakistan.
16. Article 41(5) of the Constitution mandates holding of election to fill in the vacancy in the office of the President not later than 30 days from the occurrence of vacancy. As such, the process of holding of election and giving effect to it within the period prescribed by the Constitution should not be hampered with. For the same reason, we cannot grant the request of some of the applicants for postponement of the election till after the decision of the petition.
In view of the above, we confirm the order dated 19-12-1997 suspending the operation of the impugned order of the Chief Election Commissioner rejecting the petitioner's nomination, with the result that the petitioner shall be entitled to participate in the election schedule to be held tomorrow for the office of the President of Pakistan, the result whereof shall be declared and given effect to in accordance with the Constitution and the law subject to final decision of this petition.
' The main case shall be listed for hearing on 12-1-1998.