' MALIK MUHAMMAD QAYYUM, J.---This judgment shall dispose of Writ Petitions Nos.29141 of 1997, 29648 of 1997 and 29405 of 1997 the same involve common questions of law and facts in respect of the election to the Office of President of Pakistan.
2. Consequent upon the resignation of Sardar Muhammad Farooq Khan Leghari, the Office of President of Pakistan fell vacant. Consequently the learned Acting Chief Election Commissioner pursuant to Article 51(5) read with Second Schedule to the Constitution of Islamic Republic of Pakistan, 1973 invited nominations to fill in the vacancy, Senator Justice (Retd.) Muhammad Rafiq Tarar, the petitioner herein was nominated by the Pakistan Muslim League (Nawaz Group) as its candidate while Mr. Aftab Shahban Mirani, respondent No,2, was nominated by the Pakistan People's Party. Certain other persons also filed their nomination papers.
3. At the time of scrutiny an objection was raised by Mr. Aftab Shahban Mirani, respondent No,2, to the candidature of the petitioner on the ground that he had been defaming and ridiculing the judiciary and was as such disqualified to contest the election for the Office of President of Pakistan.
This objection prevailed with the learned Acting Chief Election Commissioner/Returning Officer who rejected the candidature of the petitioner, vide his order dated. 18-12,1997, which has been assailed by the petitioner by filing this Constitutional petition on 19-12-1997.
4. This petition was admitted to regular hearing on 19-2-1997 when as an interim measure, the operation of the order of the learned Acting Chief Election Commissioner was suspended and the name of the petitioner was ordered to be included in the list of validly nominated candidates, provisionally, subject to decision of this petition. On 30-12-1997, this order was confirmed by this Court.
5. In the election to the Office of the President of Pakistan was held on 31-12-1997, the petitioner secured 642 valid votes (374 calculated votes) and was declared successful.
6. We have heard Mr. Ijaz Hussain Batalvi, Advocate on behalf of the petitioner and Mr. Iftikhar Ahmed and Mian Sattar Najam, Advocates on behalf of the contesting respondent No,2, Mr. Aftab Shahban Mirani, No one appeared on behalf of the Chief Election Commissioner/Returning Officer to defend his order. We had consequently asked Khawaja Saeed-uz-Zafar, learned Deputy Attorney-General for Pakistan to establish contact, which he did, firstly with Mr.Justice Mukhtar Ahmad Junejo, the Acting Chief Election Commissioner and after the appointment of permanent Chief Election Commissioner with Mr. Justice (Retd.) Abdul Qadeer Chaudhry, but both of them did not wish to appear and defend the order.
' An application was moved by respondent No,2, Aftab Shahban Mirani to the effect that questions of Constitutional interpretation being involved, notices be issued to the learned Attorney-General for Pakistan and the Advocates-General of the four Provinces in terms of section 27-A, C.P.C. We, however, thought it fit to issue notice to the learned Attorney-General for Pakistan alone, on whose behalf Khawaja Saeed-uz-Zafar, Deputy Attorney-General for Pakistan appeared and assisted us.
8. Another application was also moved by Mr.Aftab Shahban Mirani for permission to cross- examine the petitioners which we have disposed of separately, Certain other persons had also filed their candidatures before the learned Acting Chief Election Commissioner which had been rejected. They filed separately Constitutional petitions and also moved applications under Order I, rule 10, C.P.0 for being impleaded as parties. They were also allowed to address the Court.
9. In support of this petition, Mr. Ijaz Hussain Batalvi, learned counsel for the petitioner, has contended that the findings recorded by the learned Returning Officer, that the petitioner stood disqualified from being a Member of the Parliament and consequently from contesting the election to the Office of the President of Pakistan in view of Article 63(1)(g) of the Constitution stands vitiated on account of misreading of record and the law. It was submitted that the Returning Officer had failed to keep in view the distinction between qualification and disqualification and that the candidature of a candidate to the Office of the President has to be considered in the light of Article 62 of the Constitution and Article 63 has no applicability. It was further argued by the learned counsel that the impugned order was passed without holding any inquiry and was as such vitiated.
The learned counsel explained that before the learned Acting Chief Election Commissioner/Returning Officer the petitioner had taken up the position that the interview and the statement on the basis of which he was disqualified were not wholly correct and were misquoted and misrepresented and as such the Acting Chief Election Commissioner should have decided the matter after holding inquiry as ordained by Rule 5 of the Presidential Election Rules, 1988. In the alternative, it was argued .That the interview and the statement made by the petitioner amounted to healthy criticism and were made for the purpose of removing certain ills and could not in any manner be calculated to defame or ridicule the judiciary.
10. Mr. Iftikhar Ahmed and Mian Abdus Sattar Najam, Advocates, representing Mr.Aftab Shahban Mirani, respondent No,2, on the other hand, objected to the maintainability of this petition by arguing that under Article 41(6) of the Constitution of Islamic Republic of Pakistan, 1973, the validity of the election to the Office of President of Pakistan could be called in question before any Court.
On merits, it was argued that the petitioner did not dispute that he had given the interview which was published in weekly "Takbir" on 23-6-1996 or that he had not made the statement which was published in daily "Jang" dated 4-12-1997 and as such no inquiry was called for. It was emphasised that on bare reading of the two documents it became obvious that the petitioner had no respect for judiciary of Pakistan and had ridiculed its Judges, some of whom were still holding office.
According to the learned counsel, while deciding the eligibility of a candidate both Articles 62 and 63 of the Constitution arc to be read together. He maintained that Returning Officer who was not obliged to hold any inquiry in the present case as there was no denial of facts by the petitioner.
11. As already observed, various other persons whose nomination papers had been rejected also addressed us. Some of them wanted that it be held that the election laws by themselves were violative of Injunctions of Islam and the system for election of President should be changed, while other argued that nomination of the petitioner had been validly rejected. Some of them supported his candidature. They also laid emphasis on our obligations, both under the Qur'anic Injunctions and the Constitution to administer justice fairly and freely.
12. From the respective contentions of the parties the most important question which arises for consideration in the present case is as to whether during determination of question of eligibility of a candidate to the Office of President, in addition to the qualifications mentioned in Article 62 of the Constitution, disqualifications enumerated in Article 63 of the Constitution should also be considered.
13. The Constitution of Islamic Republic of Pakistan, 1973 by itself does A not as such provide any qualification which must be possessed by a candidate to the Office of President of Pakistan. But Article 41(2) of the Constitution makes I a reference to qualification required by a candidate to the Parliament. This provision reads as under:-- "41. The President (1)...
(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.
(3)
(4)
14. As will be seen from the above, the key words in the present context are "qualified to be". In the submission of Mr. Ijaz Hussain Batalvi, qualification and lack of it is quite separate and distinct from disqualification incurred by a person and that it is Article 62 of the Constitution which deals with qualification of a person which has to be considered while judging the eligibility of a candidate to the Office of the President. According to him disqualifications which are separately contained in Article 63 of the Constitution cannot be applied. On the other hand, the learned counsel for respondent No,2 has argued that Articles 62 and 63 are inter-connected and interchangeable and both provide qualification and also disqualifications which must be considered together for judging the candidature of a candidate for the Office of President.
15. Having heard learned counsel for the parties given our consideration to this aspect of the matter, we are clearly of the view that qualification and disqualification are not interchangeable terms and have separate and distinct connotations, While qualification means possession of those attributes which entitle a person to be considered for some post or office, disqualification means loss of those attributes by certain act or omission. To put it in other words, qualification is a virtue while disqualification is a vice.
16. This question directly came up for consideration before one of us (Malik Muhammad Qayyum, J.) in the case of Mian Muhammad Shabbaz Sharif v. Ch. Muhammad Altaf Hussain (PLD 1995 Lah.
541) wherein though no final opinion was rendered by this Court, but while agreeing with the submission made by Mr.Sharif-ud-Din Pirzada, Advocate, it was observed that the qualification and disqualifications were separate and distinct concepts and the two expressions were not interchangeable. While coming to this conclusion, this Court had relied upon the definitions of the qualification and disqualification given in Black's Law Dictionary, 5th Edition, at page 1116, which are as follows:-- "Qualification means: ' The possession by an individual of the qualities, properties or circumstances, natural or adventitious, which are inherently or legally necessary to render him eligible to fill an office or to perform a public duty or function. Thus, a 'qualified voter' is one who meets the, residency, age and registration requirements.
' Also, a modification or limitation of terms or language; usually intended by way of restriction of expressions which, by reason of their generality, would carry a larger meaning than was designed."
"Disqualification means: ' To divest or deprive of qualifications: to incapacitate to render ineligible or unfit, as, in speaking of the 'disqualification' of a Judge by reason of his interest in the case, of juror by reason of his holding a fixed preconceived opinion, or of candidate for public office by reason of non-residence, lack of statutory age, previous commission of crime, etc." (Page 424).
16-A. The cases of Government of Pakistan v. Syed Akhlaq Hussain and others PLD 1965 SC 527; Ghulam Abbas v. Additional Commissioner and Election Tribunal, Khairpur PLD 1965 (W.P.) Kar. 625; Malik Hamid Sarfraz v. Federation of Pakistan and another PLD 1979 SC 991; were also referred to, in support of the view that qualification and disqualifications are not synonymous but have different connotation and consequently while referring to a person "qualified to be", there is no occasion to import the provisions referring disqualification..
17. The learned counsel for respondent No,2 has, however, drawn our attention to the judgment of Full Bench of this Court in the case of Noor Muhammad Qureshi v. Election Commission of Pakistan W.P. No,23121 of 1996 (1997 CLC 1913) to which two of us were parties. Although it is true that some observations made in the aforesaid judgment of the Full Bench tend to give an impression that there was no distinction between the qualification and disqualification, we may state that the question as to whether there is any law for such distinction was neither argued at the Bar nor considered or decided by this Court. No detailed discussion on the subject was also held nor any opinion rendered. The matter having been decided in limine cannot be considered to be a precedent.
18. Having held that the qualification and disqualification are two separate concepts, we find no difficulty in holding that it is Article 62 of the Constitution alone which is to be applied by the Returning Officer at the time of scrutiny of the nomination and Article 63 had no application.
19. This view is strengthened by the opening words of the heading as also opening words of Articles 62 and 63 of the Constitution which respectively deal with qualification and disqualification. It may at this stage be pointed out that Article 62 of the Constitution as it stands today does include some clauses which have the attributes of disqualifications rather than qualifications. Therefore, it can safely be said that the disqualification which the Constitution-makers wanted to be considered while judging the question of qualification, were included in the said Article by the amendments and as such there is no occasion to transpose the other disqualifications which have not been mentioned in Article 62 for judging the validity of the candidature. This view is also fortified by reference to Article 43 of the Constitution which separately provides for disqualification to the Office of President. If Article 63 ipso facto was to apply for the election of President of Pakistan, there was no occasion for separately providing disqualifications. It is well established principle of interpretation of statutes, moreso of a Constitutional document, that redundancy cannot be attributed to the legislation.
20. There is another reason for holding that at the time of scrutiny of nomination papers Article 63 should not be taken into consideration by the Returning Officer which is, that at the time, the Chief Election Commissioner has to decide objection during scrutiny of nomination papers, he cannot hold a detailed inquiry nor any forum has been provided for determination of the disputed questions which might arise and as such it is not open to the Returning Officer to take such a decision on summary inquiry. If a question arises as to disqualification of a Member of a Parliament, the Constitution itself provides a forum in sub-Article (2) and also the procedure which has to be followed for disqualifying him.
21. We cannot lose sight of the fact that the petitioner at the time when he did file nomination papers was a sitting Member of the Parliament. But for his election to the Office of the President the petitioner should have continued to be so. It would, therefore, be anomalous that though the petitioner could remain a Member of the Parliament, he was not qualified to contest election for the Office of President. If a person is a sitting Member of the Parliament he can only be disqualified from being so by the Chief Election Commissioner on a reference made by the Speaker or the Chairman of the Senate, as the case may be, and it is not open to any other functionary to take any decision in that respect in any manner other than that provided by the Constitution. Pir Sabir Shah v. Federation of Pakistan etc. (PLD 1994 SC 738) may be referred to with advantage.
22. As already mentioned above, Article 41 does not by itself provide disqualifications for contesting the election to the Office of President but adopts the method of what is commonly known as legislation by reference and provide that a candidate to the Office of President must be qualified to be a Member of the National Assembly. Article 41(2) as it stands today is in the same form as it was enacted in the original Constitution in the year 1973 while Articles 62 and 63 have been amended/substituted from time to time subsequently. The question which therefore arises is as to whether those qualifications for the Members of National Assembly which were not there in the original Constitution at the time when Articles 41(2), 62 and 63 were enacted but were subsequently provided by an amendment must also be considered while judging the candidature of the Office of President.
23. It is a fundamental principle of interpretation of statutes that in cases where methodology of legislation by reference or incorporation of some provision has been adopted, all amendments subsequently made in the provision to which reference was to be made has to be ignored and the provision as it stood when the law was enacted must be kept in view. The rationale behind this principle is that if a law refers to another law and incorporates it, it becomes a part of the former as it has been written down in pen in the said provision. Any change subsequently brought in the other provision cannot automatically or ipso facto become applicable. Reference can be made to the observations of the Supreme Court of Pakistan in the case of Ms. Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416) approving the opinion expressed by Bindra in the Interpretation of Statutes, 7th Edition, pp. 694 and 700.
24. It follows from the above, that even if Articles 62 and 63 are both looked into while determining as to whether a person was eligible to contest for the Office of President Article 63(1)(g) cannot be pressed into service inasmuch as at the time when Article 41(2) was enacted Article 62 or 63 did not contain any provision similar to Article 63(1)(g) which was brought in, as a result of amendments made by P.O. 14 of 1985 and Constitution (Eighth Amendment) Act, 1985.
25. In consequences, we are of the view that Returning Officer acted in excess of jurisdiction in judging the candidature of the petitioner on the basis of Article 63(1)(g), which had absolutely no applicability, by holding that the petitioner was disqualified from being a Member of Parliament and, therefore, from contesting the election to the Office of the President.
26. Reverting to the objection raised by the respondent's learned counsel to the jurisdiction of this Court it is too late in the day to argue that the Constitution provides blanket protection to any act or action. The command in the Constitution that a particular action or omission shall not be called in question before any Court appears at different places in the Constitution has been the subject- matter of interpretation in various cases. By now there is consensus that these words can only oust the jurisdiction of the Court in respect of those acts which do not suffer from any malice in law or in fact. On the other hand, if the action is demonstrated to be without jurisdiction, coratn non judice or mala fide then notwithstanding the language used, the interference by the superior judiciary is fully justified. Reference may be made to the case of Pir Sabir Shah v. Federation of Pakistan etc. (PLD 1994 SC 738).We may also at this stage state that earlier the Supreme Court of Pakistan in the case of Election Commissioner of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396) had taken the view that under Article 225 of the Constitution, the validity of election could not be challenged in any Court except before an Election Tribunal. This conclusion was arrived at on the basis of interpretation of the words "election shall not be called in question". It was held that all steps taken towards holding of the election from the day of nomination to the declaration of result were covered by the word "election" and no interference was called for. This view has, however, undergone a change in subsequent case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer (1994 SCMR 1299) wherein the Supreme Court itself held that if the order passed by the functionary was void or violative of the law or without jurisdiction and had the effect of disfranchising a person, it could be struck down under Article 199 of the Constitution. It is also to be seen that unlike India, there is no forum provided for resolution of any dispute arising in connection with the election to the Office of President. Therefore, there is no alternative remedy available. Although it is true that in view of the Constitutional command, the election to the Office of the President is outside the purview of jurisdiction of the Court but that ouster is not all pervasive. The power of judicial review under Article 199 of the Constitution is exercisable in cases where the orders passed or steps taken by the functionary are shown to be beyond its authority, violative of the Constitution or the law and are otherwise coram non judice or tainted with mala fide of fact or law.
27. In the present case, we have found that the Acting Chief Election Commissioner/Returning Officer acted in excess of his jurisdiction in judging the candidature of petitioner on the basis of Article 63(1)(g) of the Constitution and, therefore, the power of judicial review under ' Article 199 of the Constitution can be legitimately exercised.
28. As far as the writ petitioners in Writ Petitions No,29648 of 1997 and 29405 of 1997 are concerned, the nomination papers, in one case were rejected, for the reason, that there was no name of any proposer or seconder while in the other case, neither the proposer of the candidate nor his seconder was voter. Obviously, in the absence of any proposer and seconder or in the absence of proposer and seconder being voters, the nomination papers could not be accepted and, therefore, no valid exception can be taken therefrom.
29. For the aforesaid reasons, we, by our short order, dated 9-2-1998, accepted Writ Petition No,29141 od 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 Islamic Republic of Pakistan, 1973 and dismissed the connected writ petitions.