1988 PLP 2475 (CLC)

"The relevant statutory provisions applicable to the present case are as follows: Article 63 (1) of the Constitution of Pakistan enumerates the disqualifications for membership of Majlis-i- Shoora (Parliament). The portion relevant for our purpose is Article 63 (1) (p) which reads as follows:- '63 (1)-- A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-i-Shoora (Parliament), if- ............................................. (p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-i-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force'." Article 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 constitutes part of the President's (Post Proclamation) Order (No. V of 1977). Thereafter vide President's Order No. 17 of 1985 (P.O. 17 of 1985) published in the Gazette of Pakistan (Extraordinary), dated 7th March, 1985 it was amended by the addition of clause (4) after clause (3). The relevant provision is as follows: (1) ................................... ................ (2) ................................... ................ (3) .................................................... (4) A person shall be disqualified from being elected 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." Thus it is evident that according to Article 63 (1) (p) of the Constitution "a person shall be disqualified from being elected or chosen as, and from being a' member of Parliament (which consists of the National Assembly and the Senate) or of a Provincial Assembly if he is disqualified under any law for the time being in force. Next, Article 10 (4) of P.0.5 of 1977 as amended provides that any 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. The intention of the law-maker can indeed be gathered from a bare reading of the above provisions that is to disqualify such a candidate to be elected or chosen as a member of the Senate who in the general elections to the National Assembly under the said Order did not secure highest number of votes polled in the constituency from which he contested and could not be elected". In the case under disposal, instead of the provisions of the P.O. 5 of 1977, the provisions of section 78 (a) of the Senate (Election) Act are being pressed into service which reads as under: "

78. Disqualification.-- A person shall be disqualified from being elected as, and from being, a member of the Senate, if- (a) he has been, on conviction for any offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years had elapsed since his release; or." It is to be noticed that under the above provision of law a person who has been convicted and sentenced for any offence for a term of not less than two years shall be disqualified from being elected as, and from being a member of the Senate unless a period of five years has elapsed since his release. It may be mentioned here that the 1962 Constitution contained a somewhat parallel provision in the form of Article 103 (2) (e) of the defunct Constitution which reads: "(d) he is otherwise disqualified from being a member of that Assembly by this Constitution or by or under any law." The disqualification contained in section 78 (a) will have effect by operation of law where the requirements for its application are admitted or shown to have been fulfilled. A reference to the decision of the Supreme Court in the case of Umar Draz Cheema v. Nazar Muhammad (1980 S.C.M.R. 156) would be most apt since it deals with the effect of provisions which are in pari materia with the provisions of Article 63 (1) (p) of the Constitution. In this precedent case, the controversy centred around clause (f) of section 21 of the Punjab Local Government Ordinance, 1979, read with section 4 of the said Ordinance. Section 21 reads as under: "

21. Disqualifications of candidates and members.- A person shall be disqualified to be a candidate or a member of a local council-- (a) to (e) ................ (f) if he, for the time being, is disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force." The learned Supreme Court was pleased to hold:- "According to its tenor it tends to bring the candidates for the local councils on the same footings as the candidates for the membership of the Parliament or the Provincial Assemblies by subjecting to the same disqualifications in addition to those enumerated in section

21. The word 'disqualified' used in clause (f) has no particular implication but that it signifies the disability according to the particular language of the provisions of other statutes. This becomes obvious if the word 'disqualified' is read in conjunction with the words 'under any law for the time being in force'. The High Court was, therefore, correct' in holding that the implication of this word was not that, that a candidate should have been disqualified under any law for the time being in force by any specific order. Further, as this clause incorporates the disqualifications under other laws and therefore the High Court was right in holding that such disqualifications being integral part of the Ordinance, full effect should be given to them subject of course to the limitation that they should not be inconsistent with the disqualifications enumerated in section

21. Again we fail to see how Article 1 (2) and (3) of President's Order No. 5 could be taken into consideration for holding that the disqualifi cations in Article 10 could not be read into clause (f) of section 21 of the Ordinance when clause (f) itself incorporates disqualifications as provided by this Article and the other laws. The principle of interpretation is that what is enacted has to be given full effect and extraneous considerations cannot be employed to make it redundant or to detract it from the meaning which it conveys. Therefore, it would not be proper to read the words "by a specific order" in clause (f) for the Courts cannot provide the deficiency which can only be done by the legislature. Accordingly, the order of the High Court is unexceptionable."

13. In the present case, if I am to accept the contention of learned counsel for respondent No.2 then I would have to deviate from the salutory principle governing the interpretation of the statutes that meaning must be given to every word of the Constitution and the Courts ought to avoid an interpretation which will have the effect of rendering its provisions surplusage or nugatory. The provisions of clause (p) of sub-Article (1) of Article 63, therefore have to be given the fullest effect. In such a situation, therefore, a person who stands disqualified for election to one of the Houses of the Majlis-i-Shoora (Parliament) would automatically stand disqualified from being elected or chosen as a member or from being a member of the National Assembly or a Provincial Assembly. This is so by virtue of the fact that both the Articles 62 and 63 by their opening words provide for qualifications and disqualifications from being elected or chosen or from being a member of a Majlis-i-Shoora (Parliament). Article 63 (1) (p) is an integral part of the Constitution. Therefore, any dis qualification by virtue of this Constitutional provision must also have its fullest effect. As observed by the Supreme Court in the case of Shujaat Husnain Qureshi, Parliament consists of the National Assembly and the Senate. The same is the position which emerges by adverting to the provisions of Article 50 of the Constitution. Then comes Article 113 read with Article 127 of the Constitution. The former Article of the Constitution prescribes that the qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial assembly as if reference therein to "National Assembly" were a reference to a "Provincial Assembly". Then by virtue of Article 127, the dis qualifications laid down in Article 63 of the Constitution would also apply to and in relation to a Provincial Assembly or a committee or members thereof. Clause (p) of sub-Article (1) of Article 63 is very much, as already observed, an integral part of the Constitutional provisions. Therefore it follows as a natural corollary that when a person is disqualified from being elected to Majlis-i-Shoora (Parliament) he would also stand disqualified from being elected to a Provincial Assembly. It will be pertinent to point out that apart from these provisions contained in Election Laws, the Legislature in its wisdom has also laid down disqualifications from being elected or chosen or from being a member of the Parliament or a Provincial Assembly by virtue of the provisions of section 33 of the Land Reforms Act, 1977. The relevant portion of the law is reproduced as under:- "

33. Offences and penalties.- (1) Whoever- (a) to (f) ............................................... (2) A person convicted of any offence under subsection (1) shall be disqualified from being a member of the Parliament or a Provincial Assembly or any local elective body and from being elected and chosen as such a member for a period of five years from the date of such conviction." This provision was pointed out to the learned counsel for respondent No.2 and he was asked to comment whether this could be said to be ultra vires of the Constitution or in conflict with any other law of the land for the time being in force. He was unable to make any submission contrary to the requirements of Article 63 (1) (p) which would govern such a case under the aforesaid law.

14. Ch. Mushtaq Ahmed, Advocate, learned Legal Adviser for the Election Commission of Pakistan has drawn my attention to the case of Sardar Asseff Ahmed All v. Mr. Muhammad Khan Junejo and others (P.L.D. 1986 Lahore 310) which was a case decided by a Division Bench of which I happened to be one of the members. In this precedent case the scope of Article 63 (1) (p) was examined and it was held in para. 19 of the decision as follows: "We would like to now deal with another argument of learned counsel for the petitioner in so far as it is advanced on the strength of Article 63 (1) (p) of the Constitution of the Islamic Republic of Pakistan inasmuch as the learned counsel was insistent upon making us believe that the disqualification provided by sub-clause (7-a) of Article 10 (2) (b) of Presidental Order No-5 of 1977 had become a constitutional disqualification. The scheme of Article 63 of the Constitution shows that it enumerates two types of disqualifications. Sub clauses (a) to (n) of clause (1) of Article 63 specify the disqualifications from being elected or chosen as, or from being, a member of the Majlis-i-Shoora. However, sub-clause (p) of the same Article appears to be designed to give recognition to the disqualification from which a person may suffer from being elected or chosen as member of the Majlis-i-Shoora (Parliament or of a Provincial Assembly under any law for the time being in force. A comparison of sub-clause (p) with the preceding clauses of the same Article clearly brings out the difference in the import of these provisions under examination. The language of sub-clause (p) of Article 63 (1) cannot reasonably be stretched so as to give to the disqualifications under a statutory law the status of disqualification specified by the Constitution itself. The disqualifications contemplated by sub-clause (p) are those from which a person suffers under the law of the land and the disappearance of the disqualification would also depend on the state of the law for the time being in force and no Constitutional amendment in that behalf need to be made. In other cases, where Constitution itself lays down a disqualification, no sub-constitutional law can wipe it out. We would thus repel the argument as misconceived." I must frankly state that by precedent, I am bound by the aforesaid decision of the Division Bench. I am also bound by the dicta of the Supreme Court in the aforementioned cited precedents by virtue of Article 109 of the Constitution.

15. The position of the Returning Officer was no different and he was obliged to read the provisions of Articles 62 and 63 of the constitution with utmost care and to scan the laws for the time being in force which lay down disqualifications for being elected or being member of a Parliament or a Provincial Assembly. The learned Returning officer, respondent No.l, confined himself merely to the question of moral turpitude and thus ignored from consideration the provisions of law and the binding precedents and thus fell into a serious Legal error, which brought about a vitiative infirmity in his impugned order. I feel that it would be of use to construe Article 63 (1) (p) from another angle. It speaks of any law for the time being in force. The word 'any' came up for consideration before the Supreme Court of Pakistan in the case of Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner (P L D 1977 SC 164), the Supreme court was pleased to hold as under:- "As rightly held by the Full Bench on the basis of the Queen v. Rowlands and others (1880) Q.B.D. 5308 and Duck v. Bates (1884) 12 Q.B.D. 79) the word "any" is an expression of utmost generality removing all limitations or qualifications." Reference may also be made to the case of Pakistan Tanneries Ltd. v. Sardar Hadayat Ullah Mokal and 5 others (P.L.D 1972 Lah. 880) and, in particular, observations occurring at page 896 of the report which are as under:- "The word 'any also shows that in this respect the word 'allotment' is not confined merely to allotments as defined in this Act, but is wider in scope to embrace all and any types of allotments or leases etc. It was laid down in Wooler v. North Eastern Breweries (1910) 1 KB 247 that 'any' is a word which excludes limitations or qualifications. It connotes wide generality. The same was the view expressed by Fry L.J. in Duck v. Bates (1883-4) 12 Q.B.D. 79)."

16. Seen in this light of this interpretation, the argument of the learned counsel for respondent No.2 that the matter be confined to the provisions of the Representation of the People Act alone in order to find out qualifications or disqualifications of persons from being elected or chosen to Majlis-i-Shoora (Parliament) or a Provincial Assembly is not sustainable. The Court must look to the entire law for the time being in force and to apply the correct law. The Supreme Court has said so in Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner etc. (1972 S.C.M.R. 359). The following pertinent passage from the judgment is quoted with advantage:- "Learned counsel for the respondent No.2 next contended that this was a new point which had not been taken in any of the Courts below and should not be allowed to be raised at this stage. It is true that none of the Courts below, at any of the several stages when this matter came up before them, noticed this point, although the original order of allotment in favour of the respondent clearly stated that the temporary allotment was being made under Clause 14 (b) of Appendix 11 and that could only have had reference to the Rehabilitation Scheme applicable to Sind, as the main Rehabilitation Scheme under the Pakistan Rehabilitation Act, 1956, did not come into being until the 24th of March, 1956. It was the duty of the Courts below to have noticed this and then to have applied the proper law. Whether a litigant draws the attention of the Court to it or not, it is the duty of the Court to apply the correct law. Reference to these provisions cannot, therefore be shut out."

17. It remains to deal with the other argument of the learned counsel for the appellant that respondent No.2 having been convicted and sentenced for a term of imprisonment for life (25 years) would be under a disability to perform his functions as a member of the Provincial Assembly and thus it will be opposed to public policy to allow him to contest the election may be a well founded argument, but this certainly is outside the contemplation of Article 63 (1) (p) of the Constitution and therefore I am not inclined to enter Cain or sustain it.

18. A few words need be said about the scheme of Articles 62 and 63 of the Constitution. A careful reading of the two Articles will bring out that the words 'qualifications and disqualifications' have been used as interchangeable terms. This is so for the reason that even the qualifications have been provided in negative terms. I am Constitution fortified in my view on a reference to proviso f Article 62 of the constitution which reads as follows:- "Provided that the disqualification specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation; and (i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament)," This is so despite the fact that Article 62 otherwise speaks of qualifications for being a member of Majlis-e-Shoora (Parliament) and lays down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless .........

19. In essence the language of Article 63 (1) is rather similar i where it lays down that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-i-Shoora (Parliament) if, the conditions prescribed in various clauses stand attracted to a given case.

20. The matter may also be examined from yet another angle. it will be noticed that the pivotal words of clause (i) of Article 62 of the Constitution read as under:- "

62. A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless- (i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament)." Therefore, in my humble view, apart from the provisions of Article 63 (1) (p) in a given situation, the same results may flow from the application of aforementioned clause (i) of Article 62 in the matter of qualifications or disqualifications from being chosen or elected as a member of the Majlis-i-Shoora (Parliament) as prescribed by and Act of the Parliament.

21. The provisions of section 78 (1) of the Senate (Election) Act are in the following terms: "

78. Disqualification.-- A person shall be disqualified from being elected as, and from being, a member of the Senate, if-- (a) he has been, on conviction for any offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release" or; A clear import of this provision is that a person on conviction for any offence and awarded sentence of imprisonment for a term of not less than two years shall stand disqualified from being elected or chosen or from being a member of the Senate unless the period specified therein has elapsed since- his release. The word 'any' prefixed to the word 'offence' is of great significance. As already noticed above, the word 'any' being of widest amplitude would remove all limitations and a person on conviction for any offence which may not involve moral turpitude shall stand disqualified by the rigours of section 78 (a) of the Senate (Election) Act, 1975.

22. I may now deal with the submission of the learned counsel for respondent NO-2 that I should leave the question of qualification or disqualification of respondent No.2 to be challenged by way of Election Petition and to allow said respondent to go to polls so that the electorate could elect the candidate of their choice. I am sorry to observe that in order to sustain this argument I am not inclined to do violence to the provisions of section 14 of the Representation of the People Act. The process of scrutiny is designed to preclude persons from entering the arena who are not. qualified for being elected or chosen or suffer from disqualification to the same effect in respect of either Parliament or a Provincial Assembly. The purpose of this provision emerges clear on a mere perusal thereof. It is designed to be a process of filtration to stop, as far as possible, ineligible persons from managing to get themselves elected to the Legislature and a right has been conferred upon the other candidates to object to the disqualifications of a rival candidate. However, I think the view of learned Legal Adviser for Election Commission of Pakistan was much to commend itself that to allow knowingly an ineligible/not qualified person to participate in the election would amount to disfranchising a large number of voters in case of a notoriety of a disqualification and would be a wasteful exercise involving public expense and time.

23. Apart from this aspect of the matter, section 14 creates an obligation for the Returning Officer to examine the nomination papers in the presence of the persons attending the scrutiny and decide any objection raised by the such person to any nomination. The provision of appeal to the Commission or to a Judge of the High Court nominated in terms of--section 14 (5) of the Representation of the People Act speaks volumes about the importance which the Legislature has attached to the process of this scrutiny for acceptance or rejection of the nomination papers of a candidate for election to Parliament or a Provincial Assembly.

24. There was an oblique reference made by learned counsel for respondent No.2 to the effect that respondent No.2 was filing a writ petition to challenge the proceedings relating to the trial, conviction and sentence of life imprisonment by Special Military Court and conviction and sentence to one year R.I. by a Summary Military Court and thus there was a possibility that he may be able to succeed in having the conviction set aside. I am afraid this argument of the learned counsel has little merit for the reason that for the purpose of rejection or acceptance of a nomination paper of a candidate, the qualifications or disqualifications to be kept in view are those from which he suffers at the time of filing of the nomination paper and not the future events. It may be pointed out that section 78 (a) of the Senate (Election) Act speaks of conviction for any offence and sentence of imprisonment for a term of not less than two years unless a period of five years has elapsed since his release. The disqualification, therefore, will continue to attach to respondent No.2 for a period of five years even if and when he is released. Attention may also be drawn to clause (m) of Article 63 (1) of the Constitution which reads as under:- (m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or." It is being pointed out to show that there is no omnibus rule of disqualifications spelt out by the statute or by the laws for the time being in force in relation to the convicts, who were convicted whether for an offence involving moral turpitude or not. In some cases, the period of disqualification will continue even after the release and in other cases the period of conviction is the starting point and expiry of five years is the terminus quo. As against this, in clause (g) of Article 62, a mere conviction for a crime involving moral turpitude or for giving false evidence without anything more amounts to disqualifi cation of a person from being elected or chosen as a member of the Parliament. It does not speak either of a starting point or a termination point if a person has been convicted for a crime involving moral turpitude or for giving false evidence. However, as I have already observed above, the provisions of the Constitution have to be harmonised and Court would not readily lean in favour of a seeming conflict. There is also a distinction in the language of Articles 62 and

63. It may be mentioned in the passing that Article 62 speaks of I a person not being qualified to be elected or chosen as a member h hereas Article 63 covers a person disqualified for being elected or chosen and also from being a member of the Parliament. In other words, the disqualification is to continue to attach to a person even if he manages to enter the Parliament despite being a disqualified person.

25. Apart from other aspects by virtue of Article 62 (f) of the Constitution a person would not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous and non-profligate and honest and ameen. Since the word 'righteous' has not been defined, it is to be given its dictionary meaning. According to the Concise Oxford Dictionary, Seventh Edn. the word 'righteous' means: "morally right, just, upright, virtuous, law-abiding". The presumption of a conviction stands so long as it lasts and presently respondent No.2 who is already undergoing a sentence of life imprisonment, cannot be said to be a righteous person. that is, law-abiding, within the meaning of word 'righteous' as given above.

26. It may be mentioned here that this appeal could have been disposed of even on the short ground for the reason that the Election Commissioner is a party to the appeal and it did not support the order of its own functionary, namely the Returning Officer, respondent No.

1. However, since the interpretation of Constitution and the law was involved the matter has been examined in depth and decided.

27. For all these reasons stated above, it is held that respondent No.2 at the time of his nomination was not qualified by virtue of his conviction to imprisonment for life on a combined reading of Articles 50, 62, 63, 113 and 127 of the Constitution of Islamic Republic of Pakistan read with the Senate (Election) Act, 1975. The impugned order of the Returning Officer having been found to be based on misapplication and misinterpretation of the relevant law and the Constitutional provisions is hereby set aside. The nomination papers of respondent No.2 are accordingly rejected as he is found to be ineligible to be a candidate at the election to the Provincial Assembly from constituency No. PP-102, Sialkot. There shall, however, in the circumstances of the case, be no order as to costs. A. A./M-960/L Appeal allowed.