P L D 1966 (W (PLP)

3. It is alleged that respondent No. 1 after resigning from the Muslim League identified himself with Combined Opposition Parties (C. O. P.) and was elected by their support. It is further alleged that after his election respondent No. 1 rejoined the Muslim League and the Muslim League Parliamentary Party in the Provincial Legislative Assembly and thereby suffered the disqualification under section 8(2) of the Political Parties Act, 1962.

4. Subsection (2) of section 8 of the Political Parties Act reads: --‑ "If a person, having been elected to the National or a Provincial Assembly as a candidate or nominee of apolitical party; withdraws himself from it, he shall, from the date of such withdrawal, be disqualified from being a member of the Assembly for the un-expired period of his term as such member unless he has been re‑elected at a bye‑election caused by his disqualification" The underlined words above are the key words in the subsection and are a sine qua non for the application of its penal provisions. Therefore, to maintain, the petition, the petitioner has to show that‑-- (i) C. O. P. was a "political party" within the meaning of section 2 of the Act; and (ii) respondent No. 1 was "a candidate or nominee" of C. O. P. Both the conditions which must be concurrently satisfied are wanting in this case. It remains a question whether C. O. P. could properly be regarded a political party for the purposes of the Act. It is common knowledge that C. O. P. was a temporary amalgam of some political elements within the country, in the wake of the last Presidential election, which did not even last till the elections to the National and the two Provincial Assemblies following the Presidential election. Further, it is admitted in paragraph 6 of the petition that C. O. P. "did not issue any formal tickets to their candidates but informally adopted them as their candidates". This, in my opinion, cuts at the very root of the petitioner's case. Not only that. Learned counsel for the petitioner admitted that in the West Pakistan Legislative Assembly, there is no party functioning under the label of C. O. P. That being so, there can scarcely arise any question of respondent No. 1 "withdrawing himself from it" within the meaning of the subsection.

5. Learned counsel for the petitioner urge that for the purpose of section 8 (2) of the Act, it is enough if respondent No. 1 is elected by the active support of Combined Opposition Parties and he need not be a nominee of that party. This clearly militates against the express wording of the statute: According to Law Lexicon by Aiyar, 1940 Edition "nominee" means "a person selected as a candidate for office; a person who has been selected by a party as its candidate for a public office". Similarly, "nomination" means "appointment; a resolution submitted to the electors that the party named is a candidate for their suffrage for an office named" Therefore, mere support by an amalgam of persons to a candidate for an election who is declared elected will not invite the penalties provided in section 8 (2) of the 1962 Act. It is important to bear in mind, that the subsection is penal in its consequence and, it is a cardinal principle of interpretation of a penal statute, that car must be taken that no one is brought within its mischief, who is not within its express language. On the petitioner's own allegations, it is not possible to bring the case of respondent No. 1 within the four corners of section 8(2) of the Political Parties Act, for he was neither a "candidate" nor a "nominee" of C. O. P. even if the status of political party was conceded to it.

6. There is yet another formidable hurdle against the competency of the writ petition. Assuming for the sake of argument that C. O. P. is a political party and respondent No. 1 contested election as its "candidate" or "nominee" and since his election, has for saken that party, even then his case shall fall to be dealt with under Article 104(2) of the Constitution only which reads: --‑ "If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall, refer the question to the Chief Election Commissioner and, ifs the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member." The above provision is in general terms anti will cover all cases in which a member of a Legislative Assembly after his election suffers any disqualification by reason of which he ceases to be a member. This creates a special forum which excludes the High Court's plenary jurisdiction under Article 98(2) of the Constitution. Even under clause (2) of Article 98 of the Constitution the High Court's writ jurisdiction is expressly made subject to the other provisions of the Constitution. This gives an over‑riding effect to Article 104(2) and, therefore, it entirely rests with the Speaker of the Assembly to move the Chief Election Commissioner to determine whether on the allegation in the petition, respondent No. 1 has ceased to be a member of the Provincial Legislative Assembly.

7. For the aforesaid reasons the writ petition is misconceived and is dismissed in limine. K. E. A. Petition dismissed.