BASHIR A. MUJAHID, J.--- Through the instant Constitutional s dated 13.8.2002 and 12.8.2002 passed by the Election Commission of. Pakistan have been assailed whereby allocation of symbol to the petitioner's party Pakistan Muslim (Z) for participating in the forthcoming general elections was declined.
2. The necessary facts for disposal of this petition are that Muhammad Ijaz-ul-Haq petitioner being President of Pakistan Muslim League (Ziaul Haq Shaheed Group} submitted a certificate under Article 12 of the Political Parties Order, 2002, under his signatures to the Election Commission, with an application for allocation of symbol. The Election Commission returned the documents vide impugned order dated 13.8.2002 stating therein that 'the application of Pakistan Muslim League (Ziaul Haq Shaheed Group) shall be returned as contemplated under rule 10 of the Political Parties Rules, 2002 inasmuch as till 4th of August, 2002, Mr. Ijaz-ul-Haq, Party Leader was a member of Pakistan Muslim League (Q). It is, therefore, inconceivable that his party could have come into existence and its election held on 3rd August, 2002". The petitioner filed a representation to the Election Commission on 15.8.2002 for review of the earlier order and requesting for accepting party's documents and allocation of symbol but the same was dismissed vide impugned order dated 17.8.2002. Hence this petition.
3. The learned counsel for the petitioner has vehemently argued that Muhammad Ijaz-ul-Haq petitioner after resignation from his previous political party i.e. Pakistan Muslim League (Q) had formed the present party with the name of Pakistan Muslim League (Z) on 3.-8.2002 and was not member of any other political party at the time when he was elected President of the present party; the documents submitted by him were complete in all respects as contemplated by Articles 12 and :3 of the Political Parties Order, 2002, and the party was eligible to obtain election symbol for contesting the elections and the refusal by the Election Commission, was illegal and the jurisdiction assumed by it is without lawful authority as the Election Commission could not go beyond Articles 12 and 13 of the Order inasmuch as was not competent to hold an inquiry and probe into the internal affairs of any political party; there was no material or record available with the Election Commission to form an opinion that the petitioner was office bearer or member of any other political party on 3.8.2002 when he was elected as party leader; the impugned orders are violative of Article 17(2) of the Constitution of Islamic Republic of Pakistan which provides a basic guarantee to a citizen to form or to be a member of a political party and that the petitioner has been discriminated inasmuch as riot in any of other parties such inquiry was held by the Election Commission except the petitioner's party. By making reference to Pakistan People's Party (Parliamentarian Group), it has been maintained that the group was formed on 5th of August, 2002, electing Makhdoom Amin Fa-him as its President while he was elected on 28.7.2002 as Senior Vice President of Pakistan People's Party and the action/orders of the Election Commission is mala fide and without jurisdiction, hence liable to be set aside.
4. Conversely, the petitioner has been opposed by the learned Deputy Attorney General for Pakistan Mr. Sultan. Mansoor on behalf of Election Commission and by Mr. M.A. Ghaffar-ul-Haq, Advocate, on behalf of respondent No. 2 (Pakistan Muslim League Qauid-e-Azam).
5. We have given due consideration to the contentions raised at the bar and perused the available record and examined relevant provisions of law.
6. It is correct that Pakistan Muslim League (Z) was formed on 3.8.2002 in its general meeting of the Council (copy of the minutes is available on the file). According to th Bank Statement, the account of the party was open-1 on 2na of August, 2002 The Press clipping of the daily Nation, the daily Jang and the daily Khabrain of 4th of August, 2002, attached with the petition show that a new party was formed and Muhammad Ijaz-ul-Haq was elected as its President on 3.8.2002. Under Article 2(d) of the Political Parties Order, "political party" has been defined as "association of citizens or a combination or groups of such associations formed with a view to propagating or influencing political opinion and participating in elections for any elective public office or for membership of a legislative body." Article 3(1) contemplates formation of political party wherein it has been provided that subject to the provisions of this Order, it shall be lawful for any body of individuals or association of citizens to form organize, continue or set-up a political party. Regarding the formation of the new party (Pakistan Muslim League (Z) it appears that the Election Commission has invoked Article 5(3) of the Order which provides that a person shall not be a member of more than one political party at a time. The stand of the petitioner is that he had denounced his membership and had dis-associated himself from Pakistan Muslim League (Q) his earlier party before becoming President of the new party. His contention has been duly supported with an affidavit which has not been controverted by affidavit. The double membership of any person can only be questioned or challenged by anyone or office bearer of any of the political parties of which he claimed or by members of new party who have formed the party under the leadership of the present petitioner. They cannot be deprived of their fundamental right to contest election under one banner and allocation of election symbol. In PLD 1988 SC 416 (Miss Benazir Bhutto v. Federation of Pakistan) it has been held that the right to join a political party also implies the right to refuse to belong to any political party if a person so desires and there is no requirement for formal resigning from any political party. We have noticed that there are many factions of Pakistan Muslim League separated from each other and none of their office bearers had resigned from the other faction.
Each group claims to be the real Pakistan Muslim League. The eligibility for allocation of a symbol for contesting election is on submission of certificate and statements referred to in Articles 12 and 13 of the Order. Under Article 12, the party leader has to submit a "certificate" within seven days from completion of intra-party elections to the effect that the elections were held in accordance with the Constitution of the party and the said certificate is to contain:-
(a) the date of the last intra-party elections;
(b) the names, designations and addresses of the party leader and all other office-bearer selected at the Federal, Provincial and local levels, wherever applicable;
(c) the election results, including the total number of votes cast and the numbe, of votes secured by each contestant for all its party offices; and
(d) copy of the party's notifications declaring the results of the election.
Under Article 13, information about the source of party funds is to be furnished to the Election Commission. The case of the petitioner is in the light of the provisions of Articles 12 and 13 of the Order and no such disqualification can be attached/added on the basis that he had been member of any political party as no formal resignation is needed and as per affidavit sworn by the petitioner he, had resigned and disassociated himself from his earlier political party which has not been controverted by any counter-affidavit or evidence so we accept it as correct statement and the return of documents by the Election Commission vide order dated 13.8.2002 without disclosing source of information that he was member of any other political party before he was elected as President of the newly formed party is not legal.
According to Black's Law Dictionary (6th Edition), "Certificate" has been defined as a written assurance, or official representation, that some act has or has not been done, or some event occurred, or some legal formality been complied with; or a statement of some fact is in a writing signed by the party certifying. The requirement for .Signing "Certificate" as contemplated under Articles 12 and 13 of the Order were fulfilled. The Election Commission during the scrutiny under Rule 10 of the Political Parties Rules, 2002, has only to see the documents and information submitted by the party leader whether it was in conformity with the Order and if that is so, the documents are to be returned for resubmission in accordance with the provisions of the Order and the Election Commission was not competent to deprive the petitioner or members of his party from participating in the general elections altogether which is violative of Article 17(2) of the Constitution of Islamic Republic of Pakistan, therefore, we find that the Election Commission has exceeded its jurisdiction while passing the impugned orders. Furthermore, how the Election Commission singled out the petitioner from the other parties. The intention of legislature and the scheme of the law is to bring the democracy in the political parties and the petitioner has fulfilled all the requirements of law, therefore, we allow this petition, set aside the impugned orders dated 13.8.2002 and .17.8.2002 and direct the Election Commission of Pakistan, Islamabad, to allocate election symbol enabling the petitioner's party to participate in the forthcoming elections.
As the symbol desired by the petitioner in his. Application before the Election Commission have already been allotted, therefore, the Secretary, Election Commission, is directed to provide the available symbols to the petitioner and at the petitioner's request, Helicopter which is. Still available in the list of symbol is ordered to be allotted to Pakistan Muslim League (Z). There shall be no order as to costs.