2016 PLP 657 (CLC)

SYED MUHAMMAD FAROOQ SHAH, J.

Pervez Musharraf (the petitioner) assailed the impugned order passed by the Election Tribunal for Sindh, Karachi, in Election Appeal No.59/2013, whereby the learned Tribunal dismissed the appeal filed against the rejection of his nomination papers to contest the election for NA 250 Karachi, South. The Petitioner seeks relief for issuance of appropriate writs quashing the impugned order and permitting to hold his papers valid and allowed him to contest the election from the aforementioned constituency.

2. We have considered the submissions of Mr. Khawaja Naveed Ahmed, Advocate for the Petitioner at length, learned D.A.G. and carefully perused the material on record.

3. Learned Counsel for the Petitioner at the very outset contended that the Election Tribunal has misconstrued Articles 62 and 63 of the Constitution of Pakistan, 1973 as the judgment delivered in the case of Sindh High Court Bar Association v/s Federation of Pakistan (PLD 2009 page 879) has legally been applied, which did not deal with Articles 62 and 63 of the Constitution. It is next contended that the controversy has been considered in the judgment delivered in the case of Raja Muhammad Afzal v. Chaudhuiy Altaf Hussain (1986 SCMR 1736) and Yousuf Raza Gilani's case reported as CLC 2008 Page 240, wherein Yousuf Raza Gilani was convicted by the trial Courts and his appeal was pending, contested the election and won it and later on became the Prime Minister also. Learned counsel has thoroughly read out the judgments delivered by their lordships and contended that obviously Petitioner shall be tried on many charges/cases/FIRs registered against him, in few of them he has got either protection of his appearance before the trial Courts or has been admitted on interim pre - arrest bail and recently in one case the petitioner has duly been arrested. Mr. Khawaja Naveed Ahmed Advocate, representing the petitioner has much emphasized on a citation delivered in the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others reported as 1986 SCMR

786. Penultimate relevant paragraphs of this citation are reproduced hereinbelow for the sake of convenience. "The word "Ameen" has been given a very extended meaning by the learned Election Tribunal so as to include 'all rights and liabilities whether concerning Allah or His creation, whether of individual significance or collective, whether concerning one's relatives or strangers, financial or political agreements'. The learned Counsel for the respondent has also advocated an extended meaning by concluding the word 'Amanah' includes all the good qualities of Muslims including righteousness, freedom from profligacy as well as abstinence from major sins. It would also include the practicing of obligatory duties. Ameen is a person 'who obeys Allah and His Prophet in his actions, utterances as well as beliefs'. Such an extended meaning of Ameen is quite out of place because clause (f) which contains it equally applies to non-Muslims. For that reason it has to be given more mundane and uniform meaning restricted to one's dealings with fellow beings and public affairs generally. The spiritual, the religious and the philosophical content thereof has to be ignored. The contention of the learned Counsel is correct that the evidence of the appellant with regard to reputation and character has not at all been noted or considered in the judgment of the Election Tribunal. Three Advocates were produced who stated about good character of the appellant. They were cross-examined. Nothing was found in their cross-examination to discredit them as partisan or unreliable witnesses or as persons not having full knowledge and information about the reputation and character of the appellant. Negative evidence furnished by them was relevant as shown earlier. In any case this evidence had to be taken note of and evaluated. Facts and circumstances of the above cited ruling are not attracting in the instant case as the Petitioner cannot be called an 'Ameen' after committing illegal, malafide and void ab-initio acts as held in the case reported as PLD 2009 SC 879."

4. Petitioner cannot be termed a man of sound character as he lacked the qualification to be elected a member of Majlis-e-Shoora (Parliament). It is an admitted position that Petitioner shall be tried on treason charges at same stage who abrogated the constitution in the year 2007, Judges confinement case, in which his bail has been rejected, stems from his illegal order to detain the several top judges including Hon'ble Chief Justice of Pakistan during the imposition of emergency in November 3, 2007. Obviously, after proclamation of emergency, he insisted the superior Court Judges to take oath under the PCO and when they refused, he confined them in house arrest and stop them from performing their duties, was not an ordinary act, rather it is an act, which shocked the entire nation, more particularly the legal fraternity. His acts spread fear in the society, insecurity among the judicial officers alongwith the lawyers and this shameful act lowered the honor, prestige of the country in the comity of nation. Undoubtedly, the Petitioner played havoc with whole judicial system of the country and affected 180 million people of Pakistan.

5. In the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879, para 85), the actions of General Pervez Musharraf dated 03 November, 2007 viz proclamation of emergency, PCO No.1 of 2007 and oath order 2007 etc. were held and declared to be unconstitutional, illegal, malafide and void ab-initio. It shall be advantageous to re-produce para 100 of the above judgment, herein-below:- "

100. It may be mentioned that the power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution, in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se. No sanctity attaches to them if they are made after a declaration to that effect is made by the Court, while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. Whey, because-- Firstly, they were void ab initio' because they were made by an authority not competent to do so under the Constitution; Secondly, Article 237, as presently worded, provides for indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person only in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan, and nothing else. It does not provide for validation of unconstitutional, illegal and void ab initio acts of usurpers of power by the Majlis-e-Shoora (Parliament)."

6. Article 62 (1)(f) of the constitution of Pakistan 1973 disqualify a person to contest the election as a member of `Mailis-e-Shoora' (Parliament) unless he is sagacious, righteous, non-profligate, honest and 'Ameen'. Moreso, clause (d) of Article 62(I) reads that he should be of good character and not commonly known as one who violates Islamic injunctions. Bare reading of clauses "e" and "f" of Article 62 provides that a candidate for election shall be a person who has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins, meaning thereby that he may be commonly known as a man of Tazkia-tul-Shahood, sagacious, righteous, non-profligate, honest and 'Ameen', qualifies demands of mandate and delivered the goods, the purpose is to ensure that the public representative offices are managed by a person possessing such attributes. The acts of the Petitioner were such as could shocked the moral conscious of society, involving moral turpitude.

7. The word 'Righteous' occurring in Article 62(f) has not been defined and would be given its dictionary meaning i.e. moral right, just or right, virtues, law abiding, therefore, the person who had played with democratic process and abrogated the constitution could not be termed as 'righteous'. Dictionary meaning of "Ameen" and "Sadiq" and as per Islamic Encyclopedia are that:-

8. It is an admitted position that the Petitioner was serving as a Chief of Pakistan Army Staff when he held in abeyance/abrogated the constitution of Pakistan and after introducing PCO became the president of Pakistan in uniform. The petitioner subverted the Constitution, the legal consequences of such action are clearly stated in Article

6. It was usurpation and abuse of State authority, the petitioner is liable for and this is what he shall be tried for. Ordering the arrest of Judges etc. an ancillary matter that grew out of this original crime. On the other hand, being guardian of Constitution our courts are upholding the process of the law, it is about establishing that authority flows from the letter of the law and not the barrel of the gun, it is about demonstrating that the law of this land applies equally to civilians as well as defence personnels, without any discrimination. It is indeed a dramatic change in fortune. Ironically enough, petition is in the hands of same judiciary he had humiliated in November, 2007, by placing the judges of the Apex Court under house arrest, restricting them from exercising their powers that was utterly illegal and unconstitutional. However, the judiciary has proved it is ready to defend the law of the land and rights of people, even against a person (petitioner) who sacked the judges of superior judiciary, set a precedent in our land that 'all are equal in the eyes of law'. Petitioner was enlarged on protective interim pre-arrest bails and such action by the court is historic, though he has violated the law and there seems to be no reason that why he should not be treated like any other citizen of the land. By the grace of Allah! The Almighty, our courts are functioning as neutral arbiters of the law and mete out justice to a person who directly wronged the judges. Obviously, we are bound by law to dispense justice to all and when we speak of the moral authority of the justice system, we must focus on the equality of justice.

9. Mr. Arshad Riaz Mughal, Advocate, claiming himself to be an Ex-Army Officer, was also representing the petitioner, contended that the petitioner being employee of Pakistan Army is subject to disciplinary action under Army Act and rules framed thereunder and if found committed misconduct or involved in moral turpitude against the oath which he had sworn, he would be disqualified according to that law, therefore, keeping in view the contention of learned counsel for the petitioner on this ground, the petitioner cannot become a member of sovereign body of the parliament, as well.

10. Suffice it to say that the findings of learned Election Tribunal for Sindh, at Karachi, delivered in Election Appeal No.59/2013 are elaborate, no illegality, gross irregularity, infirmity appears in the impugned verdict, lead us to the conclusion that the impugned orders pronounced by learned Returning Officer on 07.04.2013, whereby the Nomination Form of the petitioner, submitted for NA 250, Karachi South, was rejected and subsequently the appeal was also dismissed, does not require any interference. Resultantly, the instant petition, having no merits for consideration is hereby dismissed.

11. Above are the reasons of the short order dated 18.04.2013 whereby the instant petition was dismissed. MH/P-13/Sindh Petition dismissed.