P L D 2009 Karachi 47 (PLP)

ZAFAR AHMED KHAN SHERWANI, J.

This petition was dismissed in limine on 2-9-2008, for the reasons to be recorded later on and following are the reasons for the same.

2. The petitioner, who is retired Additional District & Sessions Judge has brought this petition under Article 199 of the Islamic Republic of Pakistan (the Constitution), to challenge the nomination of Respondent No.3, for the election for the office of President of the Islamic Republic of Pakistan, on the ground that he lacks one of the qualifications i.e. to be "Ameen" as provided in Article 62, clause (f) of the Constitution, therefore, the Election Commission of Pakistan and others may be restrained from accepting his nomination papers.

3. Brief facts of the case as mentioned in the petition are that in the year 1990 the petitioner was selected for the post of Additional District and Sessions Judge by the High Court and his name' was recommended to the Government of Sindh by the Registrar of the High Court along with 13 other candidates placing his name at Sr. No.4 for the appointment, but the Government of Sindh referred the matter back to the Registrar, High Court on the ground that four of the candidates- including the petitioner did not fulfil the required condition of required age limit for the said post. This issue remained pending with the Sindh High Court till the respondent No.3 was appointed as Chief Justice, who later on sent another list of selected candidates deleting the name of the petitioner, dishonestly with ulterior motive, therefore, he lacks qualification of "Ameen". The petitioner further stated that in the year 1994 he was ultimately appointed as Additional District and Sessions Judge by the then Acting Chief Justice, therefore, on account of delay of five years in such appointment his seniority was affected, hence this petition.

4. We have heard the learned counsel for the petitioner at length. He only reiterated the contents of petition and submitted that the respondent No.3 may be restrained from contesting the election.

5. We have carefully examined the contents of the petition and the arguments of the learned counsel for the petitioner.

6. The first and the utmost question is whether the petitioner can challenge the candidature of a candidate for the office of the President under Article 62 of the Constitution before this Court involving the Art. 199 of the Constitution. In this regard the ratio laid down by the Honnurable Supreme Court in the case of Jamat-e-Islami v. Federation of Pakistan, (PLD 2008 SC 30) is crystal clear. As per apex Court such matter falls within the jurisdiction and domain of Election Commission of Pakistan, a constitutional forum of exclusive jurisdiction. The relevant finding in this regard is reproduced as under:- "(iv) The question relating to the application of Article 63 read with Article 62 of the Constitution to determine the eligibility of a person to contest the election for President cannot be raised before this Court at this stage as the matter squarely falls within 'the jurisdiction and domain of Election Commissioner of Pakistan, a constitutional forum of exclusive jurisdiction." The petitioner has note disclosed in the petition as to why he did not avail the remedy before the Election Commission of Pakistan and why this petition has been brought without exhausting the available remedy.

7. Secondly the petitioner, a former Additional District and Sessions Judge, has retired from service after long span of time since 1994 but there is nothing on record that he had ever agitated his grievance during his tenure of service before the competent forum.

8. The wild allegation of the petitioner against a former Chief Justice of Pakistan which too without any substance leads to the conclusion that the petition is mala fide and has been filed with ulterior motives to malign a former head of the institution, therefore, the same merits dismissal in limine with special costs.

9. In view of the above discussion and the findings, the petition is dismissed with special costs of Rs.100,000 to be deposited with the Nazir of this Court, within two weeks. S.A.K./A-109/K Petition dismissed.