1. ' SAIDUZZAMAN SIDDIQUI, J.---The Chief Election Commissioner (CEC) vide Notification No,F.3(1)/97- Cord(3), dated 23-2-1997 called upon the members of Provincial Assembly of N.-W.F.P. To elect 3 members against the seats, reserved for 'Ulema' Technocrats' and other professional' in the Senate for the Province of N.-W.F.P. Six candidates, Engineer Iqbal Zafar Jhagra (appellant in C.A 659/97)
2. Anwar Kamal Khan (appellant in C.A No, 660/97) Khalilur Rehman (appellant in C.A No, 684 of 1997 and C.A. No,685 of 1997), Syed Iftikhar Hussasin Gillani (appellant in C.A. No,1121 of 1997), Qazi Muhammad Anwar and Muhammad Azam filed their nomination papers for the above three seats of Senate. The Presiding Officer of the Senate Election rejected the nomination papers of Anwar Kamal Khan on the ground that he neither qualified as a technocrat' nor as a 'professional'.
3. However, on an appeal, filed by Anwar Kamal Khan against the order of Presiding Officer rejecting his nomination papers, the Chief Election Commissioner reversed the decision of Presiding Officer and accepted the nomination papers of Anwar Kamal Khan. After acceptance of the nomination of Anwar Kamal as aforesaid, Muhammad Azam one of the candidates withdrew from contest leaving only five candidates in the field. Kazi Muhammad Anwar, a nominee of Awami National Party and Anwar Kamal and Engineer Iqbal Zafar Jhagra, the two nominees of Pakistan Muslim League (Nawaz Group) were declared elected to the three reserved seats of Ulema, technocrats and other 'professional' in the Senate for N.-W.F.P., in the election held on 12th March, 1997.
4. ' Three separate Election Petitions, Nos.1 to. 3 of 1997, challenging the election of Engineer Iqbal Zafer Jhagra and Anwar Kamal, were filed before the Election Tribunal N.W.F.P. At Peshawar, two by Khalilur Rehman (Election Petition Nos. 2 and 3 of 1997) and one by Syed lftikhar Hussain Gillani (Election Petition No,1 of 1997). The Hon'ble Election Tribunal by two separate judgments dated 23- 6-1997 declared the election of Engineer Iqbal Zafar Jhagra and Anwar Kamal Khan void but refused to declare Khalilur Rehman and Syed Iftikhar Hussain Gillani as elected in place of Engineer Iqbal Zafar Jhagra and Anwar Kamal Khan. Consequently, the two seats which became vacant as a result of the order of Election Tribunal, are, to be filled through bye elections.
5. ' Civil Appeals Nos. 659 of 1997 and 684 of 1997 have been filed by Engineer Iqbal Zafar Jhagra and Khalilur Rehman respectively, against the order of Election Tribunal declaring the election of Engineer Iqbal Zafar Jhagra as void and refusing to declare Khalilur Rehman elected against the vacant seat of Engineer Iqbal Zafar Jhagra.
6. ' Civil Appeals Nos. 685, 660 and 1121 of 1997 are filed by Khalilur Rehman, Anwar Kamal Khan and Syed lftikhar Hussain Gillani respectively, against the order of Hon'ble Election Tribunal declaring the election of Anwar Kamal Khan void but refusing to declare Khalilur Rehman and Syed lftikhar Hussain Gillani elected in the vacancy of Anwar Kamal Khan.
7. ' We have heard Mr. Shahzad Jehangir, Senior Advocate Supreme Court for Iqbal Zafar Jhagra, Mr. Abdul Karim Khan Kundi, Advocate Supreme Court and Mr. Ibrahim Satti, Advocate Supreme Court for Anwar Kamal Khan, Mr. Fakharuddin G. Ibrahim, Senior Advocate Supreme Court for Khalilur Rehaman and Mr. Iftikhar Hussain Gillani appellant in person in the above appeals.
8. ' The controversy in the above appeals revolves around the interpretation of the word 'technocrat' and 'professional'. Iqbal Zafar Jhagra and Anwar Kamal Khan were elected against the seats reserved for Ulema, 'technocrats and other 'professionals' as a nominee of a political party. Iqbal Zafar Jhagra claimed to be 'technocrat' while Anwar Kamal Khan fought election as a 'professional'.
9. Khalilur Rehman and Iftikhar Hussain Gillani who were also candidates in the senate election as independent alongwith Iqbal Zafar Jhagra and Anwar Kamal Khan for the seats reserved for 'technocrats' and 'professionals' lost the election. In their election petitions before the Hon'ble Election Tribunal, Peshawar, Khalilur Rehman and Iftikhar Hussain Gillani asserted that Iqbal Zafar Jhagra and Anwar Kamal Khan were neither 'technocrats' nor 'professionals' and as such their election to the seats reserved in the Senate for 'technocrats' and 'professionals' was void. The Hon'ble Election Tribunal after analysing the qualifications of Iqbal Zafar Jhagra and Anwar Kamal Khan, came to the conclusion that they were neither 'technocrats' nor professionals' as defined in P.O. 5 of 1977 and as such their election to the seats reserved in the Senate for 'technocrats' and professionals' was void. The Hon'ble Tribunal, however, refused to declare Khalilur Rehman or lftikhar Hussain Gillani as elected in place of Iqbal Zafar Jhagra and Anwar Kamal Khan on the ground that the disqualifications of Iqbal Zafar Jhagra and Anwar Kamal Khan were not of such a notorious nature that the votes polled by them in the election be considered as throw away votes.
10. Accordingly the Hon'ble Election Tribunal directed filling in of the vacancies of Iqbal Zafar Jhagra and Anwar Kamal Khan through bye elections.
11. ' Iqbal Zafar Jhagra and Anwar Kamal Khan in C.A.No, 659 of 1997 and C.A. 660 of 1997 respectively, have challenged the judgments of the Hon'ble Election Tribunal, dated 23-6-1998 declaring their election as void. Khalilur Rehman has filed C.As. 684 and 685 of 1997 and lftikhar Hussain Gillani has filed C.A. No,. 1121 of 1997, challenging the judgments of Hon'ble Election Tribunal refusing to declare them elected against the vacancy of Iqbal Zafar Jhagra and Anwar Kamal Khan.
12. ' The Hon'ble Election Tribunal while declaring the election of Iqbal Zafar Jhagra and Anwar Kamal Khan to the seats reserved in the senate for 'technocrats' and 'professionals' held that they do not qualify as a 'technocrat or professional as defined in the explanation to Article 5 of P.Os. Of 1977. To understand this controversy in its true perspective it is necessary to examine the A legislative history in this regard. The Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution') contained the following provision regarding Senate:-- "59. (1) The Senate shall consist of sixty three members, of whom--
(a) fourteen shall be elected by the members of each Provincial Assembly;
(b) five shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly; and
(c) two shall be chosen from the Federal capital in such manner as the President may, by Order, prescribe.
(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.
(3) The Senate shall not be subject to dissolution but the term of office of its members shall be four years, half of them retiring every two years, except in the case of the members elected by the members from the Federally Administered Tribal Areas, of whom three shall retire after the expiration of the first two years and two shall retire after the expiration of the next two years: ' Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled."
13. ' From the above provision in the Constitution, it is quite clear that originally there was no concept for election to the Senate against any reserved seat for Ulemas, technocrats' or other professional'.
14. The Constitution was, however, held in abeyance on promulgation of Martial Law in the country on 5-7-1977. The Chief Martial Law Administrator on 28-7-1977 promulgated President's (Post Proclamation) Order 5 of 1977 Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (hereinafter to be referred as P.0.5). Article 1(2) of P.0.5 declared that it shall apply only in respect of the forthcoming elections to the Houses of Parliament and Provincial Assemblies. Article 3 of P.0.5 provided that Election to the two Houses of Parliament and the Provincial Assemblies shall be held in the month of October 1977 on the dates to be notified by the Election Commissioner under the Representation of the People Act or under the Senate (Election) Act, as the case may be. The provision relating to the election to 'the seats in the Senate contained in Article 5 of P.0.5 reads as follows:-- "5. The Senate. --(1) As provided in Article 59 of the Constitution.--
(a) the Senate shall consist of sixty three members, of whom--
(i) fourteen shall be elected by the members of each Provincial Assembly;
(ii) five shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly; and
(iii) two shall be chosen from the Federal Capital in such manner as the President may, by Order, prescribe;
(b) election to fill seats in the Senate allocated to each Province shall be ' held in accordance with the system of Proportional representation by means of the single transferable vote; and
(c) term of office of the members of the Senate shall be four years, half of them retiring every two years, except in the case of the members, elected by the members from the Federally Administered Tribal Areas, of whom three shall retire after the expiration of the first two years and two shall retire after the expiration of the next two years: ' Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled.
(2) The members elected or chosen as members of the Senate shall be divided into two groups by drawing lots, the first group consisting of seven members from each province, three members from the Federally Administered Tribal Areas and one member from the Federal Capital and the second group consisting of seven members from each Province, two members from the said Areas and one member from the Federal Capital.
(3) The term of the office of the first group and of the second group shall respectively be two years and four years.
(4) The term of office of persons elected or chosen to succeed the members of the Senate at the expiration of their respective terms shall be four years."
15. ' The provision relating to Senate introduced through P.0.5 did not change the original provision in the Constitution relating to total number of seats reserved for Senate, distribution of these seats between provinces, Federally Administered Tribal Areas (FATA) and the Federal Capital territory the method of election though proportional representation by means of single transferable vote and the terms of the office of Senators. However, clause (2) of Article 5 of P.0.5 provided that the elected members of senate will be divided in two groups by drawing of lots. The first group would consist of 7 members from each province, three members of FATA and one member from Federal Capital territory. The Second group in the Senate in the like manner would consist of 7 members from each province, two members from FATA and one member from Federal Capital territory. The term of the first group was provided in Article 5(3) as two years while that of the second group as 4 years. It was further provided in Article 5(4) (ibid) that the terms of the office of person elected or chosen to succeed the members of Senate at the expiration of their respective terms should be four years.
16. P.O 5 was amended from time to time by the following Presidential Orders between the period July 1977 to June 1985:-- {{TABLE}} "PRESIDENT'S (POST-PROCLAMATION) ORDER 6 of 1977 dated 31-7-1977 7 of 1977 dated 7-8-1977 8 of 1977 dated 31-8-1977 12 of 1977 dated 4-10-1977 President's Order 17 of 1978 dated 24-9-1978 21 of 1978 dated 19-11-1978 12 of 1979 dated 18-8-1979 15 of 1979 dated 19-9-1979 18 of 1979 dated 27-9-1979 20 of 1979 dated 8-10-1979 21 of 1979 dated 18-10-1979 8 of 1984 dated 27-10-1984 13 of 1984 dated 5-12-1984 14 of 1985 dated 2-3-1985 2 of 1985 dated 12-1-1985 3 of 1985 dated 12-1-1985 4 of 1985 dated 12-1-1985 7 of 1985 dated 17-1-1985 8 of 1985 dated 20-1-1985 9 of 1985 dated 20-1-1985 12 of 1985 dated 2-3-1985 16 of 1985 dated 6-3-1985 17 of 1985 dated 7-3-1985 18 of 1985 dated 17-3-1985 21 of 1985 dated 19-3-1985 22 of 1985 dated 19-3-1985 23 of 1985 dated 19-3-1985 27 of 1985 dated 29-6-1985" {{TABLE}} ' After the party-less election of 1985, the P.O 5 was amended through Ordinance I of 1986 which was later converted into an Act of Parliament by Act No, II of 1986.'
17. ' It is not necessary to refer here all the amendments made in P.O 5 through the Presidential Orders mentioned above as all of them are not relevant for decision of controversy before us in these cases. We will, therefore, only refer to those amendments which have some bearing on the issues raised before us in the above appeals.
18. ' P.0.5 provided that the general election in the country will be held in October 1977. Through P.O. 12 of 1977 the words "in the month of October 1977" in Article 3 of P.O. 5 were omitted with the effect that the general election in the country stood postponed for an indefinite period. Thereafter, only two more amendments were made in P.O. 5 in the year 1978 and 4 in the year 1979 through P.Os. 17 and 21 of 1978 and P.Os. 15, 18,20 and 21 of 1979. The amendments made in 1978 introduced the concept of separate electorate and fixed the number of Muslim and non-Muslim seats in the National and Provincial Assemblies besides reserving specific number of seats for women in the Assemblies and providing for the manner of their elections. The amendments of 1978 also fixed the minimum age of a voter at 21 years. The amendments made in P.O 5 in the year 1979 mainly related to qualifications and disqualifications of the members of Parliament. No, amendments in P.O. 5, thereafter, were made between the period from 9-10-1978 to 26-10-1984. P.O. 8 of 1984 which was enacted on 27-10-1984, omitted clause (2) of Article 1 of P.O 5 which provided that P.0.5 would apply only in respect of forthcoming election to the Houses of Parliament and Provincial Assemblies. The result of this amendment was that the restriction provided in Article 1(2) of P.O. 5 that the provision of P.O. 5 applied only to the forthcoming elections to the Houses of Parliament and the Provincial Assemblies stood removed. P.O. 5 was further amended through Presidential Orders No, 2, 3 and 4 of 1985 all issued on 12-1-1985. These Presidential Orders amended Articles 4, 7, 10 and 12 of P.0.5 besides substituting a new Schedule in P.O. 5 in place of 1st and 2nd Schedule. P.0.5 was again amended through P.O. 7 of 1985 enacted on 17-1-1985 which increased the disqualification period prescribed in Article 10(2) (b) (6) from 5 to 12 years and sub-paragraph (6-a) was omitted. P.Os. 8 and 9 of 1985 which were enacted on 20-1-1985 amended Article 11 and Articles 4 and 6 of P.O. 5 respectively. Through President's Order 14 of 1985, The Revival of the Constitution of 1973 Order 1985 (R.C.O.) Article 59 of the Constitution was amended and further amendment in Article 59 was made through Constitution (Eighth Amendment) Act, 1985 (Act No, XVIII of 1985). Article 59, in its amended form, now reads as follows:-- "59. (.1) The Senate shall consist of {eighty-seven} members, of whom---
(a) fourteen shall be elected by the members of each Provincial Assembly;
(b) eight shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly;
(c) three shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe; and
(d) five shall be elected by the members of each Provincial Assembly to represent Ulema, technocrats and other professionals.
(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of Proportional representation by means of the single transferable vote.
(3) The Senate shall not be subject to dissolution but the term of its members, who shall retire as follows, shall be six years:--
(a) of the members referred to in paragraph (a) of clause (1), seven shall retire after the expiration of the first three years and seven shall retire after the expiration of the next three years;
(b) of the members referred to in paragraph (b) of the aforesaid clause, four shall retire after the expiration of the first three years and four shall retire after the expiration of the next three years;
(c) of the members referred to in paragraph (c) of the aforesaid clause, one shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years; and
(d) of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the first three years and three shall retire after the expiration of the next three years: Provided that the term of office of a person elected to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled."
19. On the same day, the R.C.O. Was enacted, P.O. 5 was further amended by P.O 12 of 1985 which inserted following Article 12-A after Article 12 in P.O. 5:-- "12-A. Bar against membership of a local council or Cantonment Board and a House or a Provincial Assembly at the same time. --If a member of a local council or Union Council constituted under any law relating to local Government or of a Cantonment Board constituted under the Cantonment Act. 1924 (II of 1924) is elected to a seat in a House or a Provincial Assembly, he shall, within a period of fifteeen days after the declaration of the result for such seat, resign his office of such members or such seat and if he does not so resign, such seat shall become vacant at the expiration of the said period."
20. ' A few days after enactment of R.C.O., on 6th March, 1985, Articles 4, 5. 6, and 12-A of P.0.5 were further amended by P.O 16 of 1985. The amendments introduced in Article 5 of the P.O. 5 reads as follows:-- "3. Amendment of Article 5 P.(P.P) 0 No,5 of 1977.- - In the said order in Article 5
(I) in clause (1),--
(a) in paragraph (a),---
(i) for the word 'sixty three' the word 'eighty seven' shall be substituted;
(ii) in sub-paragraph (ii) for the word 'five' the word 'eight' shall be substituted and the word 'and' at the end shall be omitted:
(iii) in sub-paragraph (iii) for the word 'two' the word three shall be substituted and after the semi- colon at the end the word 'and' shall be added; and
(iv) after sub-paragraph (iii) amended as aforesaid, the following new subparagraph shall be added, namely:- "(iv) five shall be elected by the members of each Provincial Assembly to represent Ulema, technocrats and other professionals:
(b) for paragraph (c) the following shall be substituted, namely:
(c) the term of office of the members of the Senate, who shall retire as follows, shall be six years:-
(i) of the members referred to in sub-paragraphs (i) and (iv) of paragraph (a), six shall retire after the expiration of the first two years, six shall retire after the expiration of the next two years and seven shall retire after the expiration of the next two years:
(ii) of the members referred to in sub-paragraph (ii), two shall retire after the expiration of the first two years and three shall retire after the expiration of every two years thereafter. And
(iii) of the members referred to in sub-paragraph (iii) one shall retire after the expiration of every two years: ' Provided that the term of office of a person elected or chosen to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled." and
(c) after clause (c), substituted as aforesaid, the following explanation shall he added, namely:-- "Explanation---in this clause.--
(a) 'Aalim' means a Muslim scholar with high qualifications in relighious education recognised by the University Grants Commission or having specialized knowledge of Tafseer, hadith and filth, to his credit and engaged for at least fifteen years in dissemination of these subjects either as an imam in a Jamia Mosque or as a teacher or researcher in an educational or research institution or as a practitioner in Islamic law;
(b) 'technocrat' means a person of nationally or internationally recoginised professional competence with at least fifteeen years, experience and expertise at a high level for administering or managing an operational policy-making unit; and
(c) Professional' means a person of distinction with nationally or internationally recognised professional qualifications and practical - experience in his specialization by adopting it as his principal calling. Vocation or employment."
(2) after clause (i), amended as aforesaid, the following new clause shall be inserted, namely:- "(1-a) a casual vacancy in the office of a member referred to in subparagraph (iv) of paragraph
(a) of clause (1) shall be filled for the remainder of the term of such member by the members of the Provincial Assembly by whom such member had been elected electing another person under the said sub-paragraph."
(3) for clauses (2) and (3) and the following shall be substituted, namely:-- "(2) the members elected or chosen as members of the senate shall be divided into three groups by drawing lots, the first group consisting of six members from each province, two members from the Federally Administered Tribal Areas and one member from the federal capital, the second group consisting of six members from each province, three members from capital and the third group consisting of seven members from each province, three members from the Federally Administered Tribal Areas and one member from the Federal Capital," and
(4) in clause (4) for the word 'four' the word 'six' shall be substituted."
21. P.O. 17 of 1985 promulgated on 7th March, 1985 further amended Article 10 of P.O. 5 by adding following new clause (4) after clause (3):-- "(4) A person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a Provincial Assembly at the elections held under this order he has not been elected to such Assembly."
22. ' Through P.O. 18 of 1985 enacted on 17-3-1985, the following new sub-paragraph (10) was added after sub-paragraph (9) in Article 10 of P.O. 5:- "(10) he is the husband or she is the wife, or a dependent son or daughter, of a person who holds any office of profit in the service of Pakistan other than an office specified in sub-paragraph (9)."
23. ' On 19-3-1985, three P.Os. Nos. 21, 22 and 23 of 1985 were issued. P.O 21 omitted Articles 20,21,22 and 23 from P.O.S. P.0.22 further amended Article 10 of P.O. 5 by adding a new clause (5) after clause (4).
24. A new validation Provision was introduced which provided that nomination paper of a person for a senate seat filed under P.O. 5 or Act LI of 1975, by a person either as a proposer or seconder. Who had not taken the oath as a member of a Provincial Assembly will not be rendered invalid or will not be called in question in any court or authority on that ground. P.O. 23 omitted sub paragraph
(10) of paragraph (b) of clause (2) of Article 10, inserted a new Article 11-A after Article 11 and omitted Article 3 which was inserted by P.O 18 of 1985, from P.0.5.
25. ' P.O. 27 of 1985 promulgated on 29-6-1985 omitted Article 12-A which was added after Article 12 in P.0.5, by P.0.12 of 1985. By Ordinance I of 1986 promulgated on 14-5-1986 sub-paragraph (7-A) of paragraph (b) of clause (2) of Article 10 in P.O. 5 was omitted. Ordinance I of 1986 was later passed by the Parliament as Act II of 1986. The provisions of the Constitution as amended by R.C.O. Were enforced from 10th March, 1985 except Articles 6, 8 to 28 (both inclusive) clauses (2) and 2(A) of Article 101, Article, 199, 213 to 216 (both inclusive) and Article 270-A. The proclamation of 5th July, 1977 was revoked on 30th December, 1985 and from that date the remaining provisions of the Constitution, which were not covered under the notification dated 10-3-1985 also came into effect.
26. Therefore, as and from 30-12-1985 the whole of the Constitution is enforced.
27. ' A bench of three learned Judges of this Court consisting of Ajmal Mian, C.J (as he then was)
28. Munawar Ahmad Mirza and Mamoon Kazi, JJ., in Civil Appeals Nos. 532 of 1997 and 589 of 1997 (Muhammad Rafiq Ahmed v. Zia Shahid, 1999 SCM R 573, decided on 23-12-1998), while considering the scope of P.0.5 of 1977 observed as follows:- "13. Having carefully gone through various provisions of President's Order 5 of 1977 as amended from time to time it would be necessary to properly analyze real purpose and true object for its promulgation. Obviously after clamping Martial Law, and keeping 'The Constitution' in abeyance General Elections were to be held within ninety (90) days and C.M.L.A. Fixed the date for 18th October, 1977. Therefore, Preamble provides the intention of law giver about restoring the democracy by transferring functions of running the Government to chosen representatives of the people. Article 1(2) specifically mentions that above legislative instrument shall apply 'Only' in respect of 'forthcoming' Election to the Houses of Parliament and Provincial Assemblies. The words Only' and forthcoming appearing in the above provision are extremely significant. It is quite manifest that, Transfer of Power needed one time Action, whereby probable complexities in transformation of Martial Law Rule into restoration of democracy, could be adequately resolved to avert possibility of chaos. It is important to note that holding of joint session and calling upon Chief Martial Law Administrator for addressing joint sitting factually clinches the controversy, because the office of Chief Martial Law Administrator was necessarily to vanish after revival of The Constitution and Transfer of Power. There could not be two opinions: that after finalization of complete process including address of C.M.L.A. To joint sitting of two Houses of Parliament and revocation of Martial Law as contemplated by Articles 20 to 24 of President's Order No,5 of 1977 The Constitution as amended would stand revived. The Special Oath required to be taken by members elected during elections held under P.O. 5 of 1977 was prescribed under its First and Second Schedule which -certainly cannot be repeated because thereafter Member of National Assembly or the Senate shall take oath under Article 65 of The Constitution and members of the Provincial Assemblies under Article 127 read with Article 65. Therefore, when entire Presidents' (Post Proclamation) Order 5 of 1977 is scrutinized it yields toward unrebuttable the conclusions that same was meant for 'only' for One Time Action to cater 'forthcoming' election held on first occasion during Martial law whereby authority to chose representative for carrying out functions of the State was to be restored by causing resultant withdrawal of Martial Law.
14. Learned counsel for appeallant Zia Shahid vehmently contended that Provisions of Article 270-A provided complete protection to P.O 5 of 1977 being an existing law, therefore, said legal instrument along with its amendment have binding effect. We may notice that every provision of P.0.5 individually or collectively converges towards the proposition that said legal instrument/statute has fixed object circumscribed by actual tenure of the law, which on the happening of specified event, would become practically ineffective and rendered infructuous. Therefore, said legal instrument by no stretch could be extended beyond its life which automatically expires after convening joint sitting referred above and withdrawal of proclamation. At this stage we may refer to observations in case Shujaat Hussain Qureshi v. Raees Ahmed Qureshi PLD 1988 SC 118 at 123 whereby validity of amendment made in P.O. 5 of 1977 through P.O. 17, dated 7th March, 1985 was challenged. The operative portion reads:-- 'In the present case it is an admitted fact that the appellant had contested the general election to the National Assembly held on 28th March, 1985 and lost the same. Sub-Article (4) of Article 10 was incorporated in P.O. 5 of 1977 on 7th March, 1985. Thus, it is evident that the appellant had become ineligible to contest election bye-election to a general seat of the Senate from the Province of Punjab held on 27th January, 1986. As he was ineligible to participate in a contest for a general seat to the Senate, then even if he was elected, he was correctly held to be disqualified to continue as Senator by the Election Tribunal.
29. ' We may observe that the submission of the appellant's counsel that the above interpretation would debar the appellant from contesting an election to the Senate for ever is untenable. It is only candidates who contested election to the National Assembly or the Provincial Assembly under P.0.5 of 1977 and were unsuccessful who stood debarred. The next general elections are admittedly to be held under the provisions of the Constitution, when Article 10(4) of P.O. 5 of 1977 will no longer be in the field.'
15. It is an undisputed position that General Election during continuance of Martial Law in February, 1985 were Non-Party Based. Apparently in order to ensure election of people having considerable excellence and enjoyed reasonable prominence towards specified fields were intended to contest against special reserved seats of Senate. Therefore, amendment was brought about by means of P.O. 16 of 1985 which provided guidelines for selecting more knowledgeable people amongst Ulema, Technocrats Or Professionals; so that men of eminence should make Senate effectively workable. The above referred amendment was serious effort for adopting necessary measures to make aforesaid forthcoming elections more viable and acceptable to people so that after Transfer of Power the Democratic Institution should be able to appropriately manage functions of the State and Legislative Affairs through men of wisdom. It can also lead to a presumption that after the restoration of normal democratic system political parties would be expected to make selection amongst people of sufficiently high calibre in their respective fields so that, they could render useful advice in resolving multifarious state problems.
16. Looking to the second limb of arguments, it is well-settled that when a legislative instrument has been enacted for specified object, fixed period, or has been made contingent upon happening of future event, then on the expiry of such period, accomplishment of specified object Or happening of contingency future event said legislative instrument would be rendered nugatory and automatically ceased to be operative. Thus protection clause, obviously can neither extend whether impliedly or expressly the prescribed tenure nor can it enlarge. Its life span of any legal instrument. For elucidation it may be seen that Article 212-B of The Constitution was introduced by means of amendment through Act No, XIV of 1991, dated 28-7-1991 (PLD 1991 Central Statute 461) regarding establishment of special Courts for the trial of heinous offences, for limited period of three years, Therefore, on the expiry of stipulated time, it stood repealed, and ceased to be operative. Therefore, except conscious steps by amending The Constitution or reenactment of law after fulfilment of object or expiry of period, same cannot he stretched forward or extended by any protection beyond specified limit or event, Therefore, invoking protection clause, life tenure can always constitutes a material and important factor, which cannot be lightly ignored or overlooked.
30. The provisions of P.0.5 of 1977 when visualized in the actual scenario, that Martial Law was clamped in the country on 5-7-1977, Chief Martial Law Administrator had announced holding of elections within 90 days whereby 18th October, 1977 had been fixed for said purpose and country was expected to be switched back on the track of democracy; However, towards end of September, 1977 election process was postponed. For the first time non-party based elections of National and Provincial Assembles were held on 25th and 28th February, 1985 respectively. Whereas election to Senate was scheduled for 12-3-1985. P.O. 16 of 1985 was promulgated on 6-3-1985 when electorate had been called upon to nominate member for Election to Senate on the strength of amendment contained in Revival of Constitution Order, 1985 promulgated on 2-3-1985. It was on this occasion that explanation was added .After Article 10(3) of P.O. Of 1977 wherein (i) Aalim (ii) Technocrat and
(iii) Professional to be elected against reserved seats; were defined. It also provided that first meeting of National Assembly and the Provincial Assemblies was fixed for 20th March, 1985, Senate was scheduled to meet on 21-3-1985 for the election of Chairman and Deputy Chairman. The joint meeting of the National Assembly and Senate was to be convened on 23-3-1985. Article 270-A of The Constitution contained the validation clause. Article 270-B simultaneously affirmed that the elections held under provisions of Houses of Parliament and Provincial Assemblies (Election) Order, 1977 shall be deemed to have been held under The Constitution and shall have effect accordingly.
17. In this background it is to be seen whether P.0.5 of 1977 as amended by P.O. 16 of 1985 was one term legislation enacted for particular purpose and expired by withdrawal of Martial Law Or it should be deemed existing law which stood protected by virtue of Article 270-A of The Constitution Considering the rival contentions and exhaustive analysis of various provisions referred above we have posed following questions to ourselves for arriving at correct conclusions:--
(i) Whether details contained in various provisions of P.O. 5 of 1977 correspond to different Articles of The Constitution which relate to National Assembly, Senate and Provincial Assemblies except definition of Aalim, Technocrat and Professional?
(ii) Whether or not oath of elected members contained in Article 7 of P.O. 5 of 1977 would cease to be operative immediately on the restoration of The Constitution and Articles 65 and 127 of The Constitution and Articles 65 and 127 of The Constitution shall have supervening and all pervading effects?
(iii) Whether provisions of Article 17 (P.0.5 of 1977) relating to summoning of Assembly would have any effect after convening first meeting of the National Assembly or the Senate?
(iv) Whether there could be, under The Constituting any sanctity left for requirement contained in Article 20(2) of P.O. 5 of 1977; and whether or not same would be directly repugnant to provisions of The Constitution?
(v) Whether provisions of Article 22 of P.0.5 of 1977 would have any legal impact after the Constitutional provisions stood revived and whether or not same shall stand automatically nullified?
(vi) Whether after revoking of Proclamation on completion of Process under Articles 21 and 22 (P.O.5 of 1977) . Could subsist and be operative instrument, specially subsequent to withdrawal of proclamation?
18. Answer is quite obvious, and by now we are fully aware that except details with regard to provision of The Constitution which had revived, none of the events Or processes specified in P.O. 5 of 1977 can possibly be repeated. They have certainly had one time action which materialized and concluded by convening joint sitting of Two Houses of Parliament and revocation of Proclamation.
31. Neither Chief Martial Law Administrator is conceived in the Constitutional set up nor his appearance to address the Assembly could be dreamed. Similarly provision relating to administering oath under P.0.5 has been rendered negatory, redundant and inconsistent with constitutional Provisions. Therefore, for all intents and purposes, objective for promulgation of P.0.5 which was 'only' for 'forthcoming election' was achieved and it automatically became inoperative when after the first general elections of 1985, the elected Body passed Constitution (Eighth Amendment) Act on 11th November, 1985 and proclamation was withdrawn, through Proclamation of Withdrawal of Martial Law, dated 30th December, 1985 (PLD 1985 Central Statute 13)."
32. While deciding the case of Sheikh Rafique Ahmed v. Zia Shahid (supra), the attention of the learned Judges of the Bench was not drawn to the P.0.8 of 1984 enacted on 27-10-1984 which omitted clause (2) of Article 1 of P.O.
5. The effect of this omission in our humble view is, that the restriction that P.0.5 applied only to the forthcoming election to the Houses of Parliament and the Provincial Assemblies, was no more there after 27-10-1984. Similarly, earlier to the omission of clause (2) of Article 1, the words "in the month of October 1977" in Article 3 were also omitted by P.O. 12 of 1977 enacted on 14-10-1977. After omission of these words from Article 3, it reads as follows:-- "3. Time of elections.--Elections to the National Assembly and the Provincial Assemblies shall be held and elections to the Senate shall be held as soon as may be thereafter, on dates to be notified by the commission under the Representation of the People Act, 1976 (LXXXV of 1976), or, as the case may be under the Senate (Election) Act, 1975, with the prior approval of the President."
33. ' By virtue of Article 270-A (3) of the Constitution, P.O. 5 continues to be a valid law and is in force.
34. The learned Judges in Sheikh Rafique Ahmed's case (supra) also referred to Articles 20,21,22 and 23 of P.O. 5 in support of their conclusion that P.O. Could only survive until revival of the Constitution, Once again the learned Judges attention was not drawn to P.O. 2 of 1985 promulgated on 19-3- 1985 which omitted Articles 20,21,22 and 23 from P.0.5 with effect from 19-3-1985. P.0.5 was also amended through Act of Parliament (Act II of 1986) which received the assent of President on 30-7- 1986.
35. ' Our above examination of the legal position reveals that P.O. 5 was neither a temporary legislation nor it was one time law which exhausted after the elections of 1985 and revival of the Constitution.
36. Since our above conclusions are not in line with the conclusion of the Hon'ble Bench which decided Sheikh Rafique Ahmed's case (supra), which might require a review, it will only be appropriate that the matter may be referred to the Hon'ble Chief Justice for Constitution of a larger Bench for hearing of these appeals.