P L D 1988 Supreme Court 237, (PLP)

NASIM HASAN SHAH, J.‑‑The above two appeals were taken up for hearing on 23‑12‑1987 but arguments were still proceeding when the Court rose for the day, with the result that the appeals remained part‑heard. As the Court went into recess for the Winter Vacations on the next day (24‑12‑1987), the hearing of the appeals was resumed shortly after the re‑opening of the Court on 23‑1‑1988 and was finally concluded on 24‑1‑1988. On conclusion of the hearing the judgment in the said two appeals was reserved. These appeals arose out of an election to fill a casual vacancy in the Senate against a seat reserved for "Ulema, technocrats and other professionals". Two contestants, namely, Dr. Farooq Hassan and Mr. Mumtaz Ahmad Khan were left in the field to contest this seat. The polling took place on 7‑1‑1987, as a result whereof Mr. Mumtaz Ahmad Khan was found to have received 157 valid votes; 12 votes were cast for Dr. Farooq Hassan, while 52 votes were rejected as invalid. As a result of the above voting Mr. Mumtaz Ahmad Khan was declared as elected. Dr. Farooq Hassan filed an election petition to call in question the election of Mr. Mumtaz Ahmad Khan on the ground, inter alia, that he was neither a "technocrat" nor a "professional" within the meaning of these terms given in Article 5 of the Houses of Parliament and Provincial Assemblies (Election) Order,1977 (hereinafter called the Order). Accordingly, he was disqualified from being elected. The petition was heard by Mr. Justice Nasir Aslam Zahid (Election Tribunal, Punjab). The learned Election Tribunal disposed of the petition vide order dated 14‑11‑1987 wherein he found that although Mr. Mumtaz Ahmad Khan was not a "professional" within the meaning of the Explanation given in Article 5 of the Order, but he did fall within the category of a "technocrat". In the result the election petition was dismissed. Two appeals were filed against the aforesiad order passed by the Election Tribunal; one by Dr. Farooq Hassan challenging the dismissal of his election petition, while the other by Mr. Mumtaz Ahmad Khan questioning the finding that he was not a "professional". Both the appeals were heard together on 23‑12‑1987, 23‑1‑1988 and 24‑1‑1988, as noted already. After the conclusion of the hearing judgment was reserved in view of the ticklish issues arising in the appeals. On 30‑1‑1988, however, lots were drawn to determine the term of office of the individual members, as warranted by Section 82‑A of the Senate (Election) Act 1975. According thereto. the members elected to the Senate are to be divided into two groups and the Chief Election Commissioner shall draw lots for the purpose of determining who shall retire after the expiration of the first three years, in terms of clause (3) of Article 59 of the Constitution. In the lots that were drawn for this purpose Mr. Mumtaz Ahmad Khan fell in the First Group whose term of office was determined as three years. In view of this development, the question has arisen whether the appeal filed by Dr. Farooq Hassan to question the election of Mr. Mumtaz Ahmad Khan has not become infructuous? After fully deliberating over this issue I have reached the conclusion that the appeal of Dr. Farooq Hassan has indeed become infructuous because unless the seat of Mr. Mumtaz Ahmad Khan can be given to him no useful purpose can be served by disposing it of on merits. This, however, does not, in the facts and circumstances of the present case, appear to be possible. This Court in a very recent judgment in the case of Pir Shujaat Hasnain Qureshi and another v . Alhaj Raees Ahmad Qureshi and others (P L D 1988 S C 118) has ruled that where an elected candidate is found to be disqualified his seat cannot automatically be given to the candidate who secures the next highest votes but can be given to him only if it is found that the disqualification of the elected candidate was so notorious that the voters who had cast votes for him had done so wilfully and perversely i.e. had done so despite being well aware of his disqualification. It was held that the votes cast for the candidate who is disqualified cannot be deemed to have been "thrown away" unless the disqualification is so notorious that the electors can be presumed to be aware of. it but notwithstanding this knowledge recklessly and wilfully vote for him. As the question as to when the disqualification of the successful candidate can be considered to be so notorious as to warrant "throwing away" the votes cast in his favour, the Court observed that this would depend on circumstances of each case. However, it was quite clear to the Court that even where a candidate has to be unseated by reason of his disqualification, the votes cast in his favour are not ordinarily to be "thrown away" and the seat given to the candidate with the next highest number of votes, because this can be done only where the disqualification of the elected candidate is manifest and notorious. In the present case, it is an admitted position that Dr. Farooq Hasan did not raise any objection at the time of the scrutiny of the nomination papers to the effect that Mr. Mumtaz Ahmad Khan was neither a "technocrat" nor a "professional" and was, therefore, disqualified for seeking election for a seat reserved for "Ulema, technocrats and other professionals". Again, in the election petition filed by Dr. Farooq Hassan‑. wherein the status of Mr. Mumtaz Ahmad 1 Khan as a "technocrat" or "professional" was challenged, the Election Tribunal, after hearing all the evidence and considering the case at length, found that Mr. Mumtaz Ahmad Khan was qualified to contest the elections at least as a "technocrat" and, therefore, dismissed the petition of Dr. Farooq Hassan. Thereafter, this Court too, after hearing the parties for three whole days, could not come to a decision on this question immediately and took time to consider the matter further and, accordingly, reserved its judgment. In these circumstances, even if it was ultimately held that Mr. Mumtaz Ahmad Khan was disqualified, his disqualification was clearly not so notorious and manifest that it could be said that the voters had wilfully and perversely cast their votes in his favour although he was disqualified from contesting the elections. Accordingly, in my opinion, the question of awarding the seat to Dr. Farooq Hassan does not arise. The only order that could possibly be passed, even if Mr. Mumtaz Ahmad Khan was found to be disqualified, would be the ordering of a fresh election to fill his seat. This is not, however, possible in the short time left before his term expires (Le 20th March, 1988). In this view of the matter, I would dismiss both the appeals as having become infructuous, leaving the parties to bear their own costs. SHAFIUR RAHMAN, J.‑‑I had the benefit of going through the draft judgment proposed to be delivered by my learned brother Dr. Justice Nasim Hasan Shah. I consider that the question of elegibility and qualification of a sitting member of the Senate or the National Assembly remains alive, justiciable issue as long as he remains such a member. If properly raised in proceedings before a Court, such a question cannot be said to have become infructuous simply because at a known, foreseeable future date for certain, either such a member shall cease to be a member or the body of which he is a member shall stand dissolved. It is only after happening of these events or any one of them that the Court can with justification treat such a question as infructuous and not a minute earlier. Following this principle I hold that on 5th March, 1988 when we are announcing the judgments these appeals are not infructuous. Mr. Mumtaz Ahmad Khan does not, according to me, qualify either as a technocrat or as a professional as defined in Article 5 of Houses of Parliament and Provincial Assemblies (Election) Order 1977. Therefore, the appeal filed by Dr. Farooq Hassan must to that extent succeed and that of Mr. Mumtaz Ahmad fail. However, it is not one of those cases where Dr. Farooq Hassan can be declared elected as the sole unopposed candidate in the field. His claim to that extent must fail, and is dismissed. The detailed reasons for this short order shall be recorded by me later. SHAFIUR RAHMAN, J.‑‑By a short note dated the 5th of March, 1988, I had recorded the opinion that the two appeals had not become infructuous and further that Mr. Mumtaz Ahmad Khan, the candidate, elected to the Senate and one of the appellants before us, was not qualified either as a professional or as a technocrat to be elected on the reserved seat to the Senate. Hereunder are the detailed reasons for the short order, which followed the opinion. Two appeals were filed under section 48(3) of the Senate (Election) Act, 1975 (Act No.LI of 1975) (hereinafter referred to as the Act) against the judgment of the Tribunal dated 14‑11‑1987 whereby the election petition filed by Dr. Syed Farooq Hassan, appellant in Civil Appeal No.338 of 1987, was dismissed holding that Mr. Mumtaz Ahmad Khan, the contesting successful candidate, was qualifed for the reserved seat not as a professional but as a technocrat as defined in Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 (hereinafter referred to as the Order). Mr. Mumtaz Ahmad Khan, the candidate successful at the election has also filed an appeal (378 of 1987) challenging the same judgment of the Election Tribunal in so far as he has been held not to be a professional but a technocrat. A seat reserved for" Ulema, technocrats and other professionals" fell vacant for which Election Commission notified inviting nominations from Punjab. On the scrutiny of the nomination papers on 29‑12‑1986 those of the two appellants were found to be in order alongwith those of eight others. Eight candidates withdrew their candidature leaving in the field of contest the two appellants. The polls were held on 7‑1‑1987, Dr. Farooq Hassan obtained 12 votes while Mr. Mumtaz Ahmad Khan received 157 votes. 52 ballot papers were rejected. The Election Commission notified Mr. Mumtaz Ahmad Khan to be an elected candidate. On the 29th of January, 1987, Dr. Farooq Hassan filed a petition under section 34 of the Act challenging the eligibility and qualification of Mr. Mumtaz Ahmad Khan to be elected against the reserved seat. The grounds on which his election was challenged were, as noted by the Tribunal, as follows: "(a) The respondent did not possess the qualifications required of a "technocrat" or "professional". (b) The respondent first solicited and then campaigned for and received votes as the official candidate of the ruling Muslim League Party contrary to law; (c) The respondent himself invalidated his nomination papers by swearing a false affidavit in support thereof; and (d) The voters, who voted in favour of the respondent in the poll held on 7‑1‑1987, deliberately wasted or threw away their votes because they knew that they were voting for a person not qualified to represent Ulema, technocrats and other professionals and as such the petitioner is entitled to be declared elected in place of the respondent." Mr. Mumtaz Ahmad Khan contested this petition and the following issues were settled by the Tribunal on 8th of March, 1987. (1) Whether the respondent is neither a "technocrat" nor a "professional" as defined in the Explanation given in Article 5 of the Houses of Parliament and Provincial Assemblies (Elections) Order No.5 of 1977? (2) Whether the respondent was nominated or put up as their candidate by the Pakistan Muslim League in the election? If so, whether any notification has been issued by the Election Commission under subsection (3) of section 3‑C of the Political Parties Act 1962, and, if not, what is its effect? (3) Whether the respondent was not qualified to be elected as he came within the mischief of sub‑clause (7‑c) of clause (b) of sub‑Article (2) of Article 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977? (4) Is the election of the respondent liable to be declared as void? (5) If the answer of Issue No.4 is in the affirmative, is the petitioner entitled to be declared as having been duly elected? (6) Relief. After recording evidence and examining its implications the Tribunal held that Mr. Mumtaz Ahmad Khan was not a professional but a technocrat, that it was not established that Mr. Mumtaz Ahmad Khan had been put up as their candidate by the Muslim League on 5‑1‑1987 and not earlier, that the election of Mr. Mumtaz Ahmad Khan was not liable to be declared void or set aside. The learned Election Tribunal came to the conclusion that Issue No.3 did not arise out of the pleadings of the parties and as such it was liable to be struck off and in any case Dr. Farooq Hassan "had not been able to establish that Mr. Mumtaz Ahmad Khan was disqualified under Article 10 (2) (b) (7‑c) of the Order". The election petition of Dr. Farooq Hassan was on these findings dismissed. In his appeal Dr. Farooq Hassan has reiterated all his grounds taken up before the Election Tribunal and on the basis of evidence and his interpretation of law applicable, seeks reversal of the judgment of the Tribunal. Mr. Mumtaz Ahmad Khan, on the other hand, notwithstanding the rejection of the election petition and his election remaining intact challenges that part of the finding of the Tribunal whereby he has been held to be not a professional but a technocrat. His contention is that he was eligible and qualified both as a professional and as a technocrat and no adverse finding could be recorded with respect to his qualification as a professional. In order to bring out the factual background in which this controversy is required to be decided, it appears necessary to reproduce what Mr. Mumtaz Ahmad Khan himself claimed while filing the nomination papers in order to show his eligibility and qualification for the reserved seat. The form of nomination papers has itself been so devised as to elicit and reflect the factual basis of the claim to the eligibility for the reserved seat and the relevant column heads and the replies thereto are reproduce hereunder:‑ Sducation Graduate With Post‑Graduate Diploma In Journalism (J.D.) 1936 1941 Government Bachelor of Economics Colleges Arts Degree Geography Lahore 1943 1944 University of Diploma in The Punjab Journalism Professional experience A. Title of present post and nature of duties (1) Member Of Editorial Board Of Monthly "Concept" Published From Islamabad The Magazine Is Devoted To The Promotion Of Pakistan Ideology. (2) Besides, At Present, I Am a Free‑lance Journalist Writing For Various Urdu And English Dailies And Magazines. From 1945 To 1947‑49 To (the date when the previous employment held) After Receiving My Diploma In Journalism 1 Joined The Associated Press Of India And Reuter, Lahore Office As a Political Correspondent. Employer (Name and address) and type of business After Independence I Was Appointed Managing Editor Of Lahore Bureau Of Associated Press Of Pakistan. In November 1947 1 Was Specially Sent To Kashmir Front To Report For Reuter's For Two Months. I Was The Only Pakistani Given This Important Assignment. Title of post and nature of duties In July 1948 I Was Sent Out On Deputation To Teheran And Baghdad To Introduce The Newly‑Born State To The Middle East Countries. There I Was Attached To The Pakistan Embassies. From 1949 To 1952‑1972 Employer (Name and address) and type of business On My Return From Teheran And Baghdad In September 1942 1 Was Again Appointed As A.P.P. Lahore Bureau Chief/Resigned In 1952 And Took To More Independent Career By Bringing Out My Own Urdu Political Magazine. Title of post and nature of duties "Iqdam" Which Was Published Till 1972. D From 1972 To 1986 .. Employer (name and address) and type of business After The Closure Of "Iqdam" For Political Reasons By The Then Government I Took To Free‑Lance Journalism As My Vocation Which Continues To Date. Please list your special. qualifications and skills: I Organised Pakistan‑China Friendship Association, Lahore, In 1957 As A National Service To Promote Close Friendly Ties Between The Two Countries. After 2 Years Efforts' I Succeeded In Getting The Crossing Of Race Course Road And Lawrence Road In Lahore Named As "China Chowk" By The Municipal Corporation. The Inauguration Ceremony Was Performed By Chinese Ambassador On November 15 Last. I Am The Only Pakistani Who Has So Far Made A Speech From Radio Beijing. Please list any significant publications you have written (Do not attach) (1) Jahan Noma (Urdu) A Travelogue Of Western Europe And The Middle East. (2) The Road To Teheran: Iran Past And Present. A Travelogue And Cultural Appreciation. (3) Pakistan's Long Autumn: A Miscellany Of Articles On National And International Affairs. All The Three Books Have Been Selected By Congress Library Washington D.C. If the answer is "yes" please indicate when and where: Member Of Lahore Divisional Council, Lahore Municipal Corporation, And Chairman Civil Lines Union Committee And Conciliation Court From 1960 To 1970. Please list your present and past memberships, if any, of societies concerned with civic, public, religious, cultural or scientific affairs or social welfa‑re. (1) President Of Pakistan‑China Friendship Association Lahore. (2) Executive Member Of Afro‑Asian Peoples Solidarity Committee Lahore. (3) Member Of Elaf Club (A National Thinkers Forum). (4) A Former Member Of Lahore Rotary Club And Secretary‑General. (5) A Former Member Of Pakistan‑Iran Friendship Society, Lahore. (6) A Member Of Majlis‑E‑Karkonan‑E‑Pakistan Since Its Inception 20 Years Ago. Mr. Mumtaz Ahmad Khan in his affidavit and in his cross examination before the Tribunal clarified some of the entries made by him in the nomination papers and the claim based on it in the following words: Q:‑ Kindly see page 3 of your affidavit (Ex.18). There you have shown yourself as member of the editorial board of Monthly Concept as far back as 1978. In view of your statement made earlier that the first issue of Monthly Concept appeared in December 1980 this assertion at page 3 of your affidavit is incorrect. A:‑ The idea of Monthly Concept was mooted earlier and Mr. Mahmood Ali had told me before the first issue had come out that I would be on the editorial board. It was his desire. There is a technical mistake in mentioning that I was a member of the editorial board since 1978." Q:‑ Kindly see copy of your nomination form Ex.5/1 where you have stated as follows:‑ "Iqdam which was published till 1972" It is put to you that this was a deliberate false statement made in your nomination form. A:‑ This is not so. When I filled up the form it was my impression that Iqdam had closed down in 1972. Later on on checking up I came to know that it was in 1964 that Iqdam was finally closed down. The nomination paper was filled up in some haste and there were some mistakes here and there which were never deliberate. Q:‑ Is it, therefore, correct that in the light of your previous answer the year 1972 in para D on page 3 of your nomination form should be 1964. A:‑ Yes. This is correct. Q:‑ Kindly see page 4 of your written statement under the heading "Political Activities" where you have shown yourself to be a member of the Lahore Divisional Council from 1,960 to 1970 and also the member of the Lahore Municipal Corporation from 1960 to 1970. This statement is incorrect. A:‑ From 1960 to 1970 I was Chairman of the Lahore Civil Lines, Union Committee and from 1960 to 1970 for some period I was member of the Lahore Divisional Council and member of the Lahore Municipal Corporation. Through typing mistake it is mentioned that I was member of Divisional Council as well as Lahore Municipal Corporation from 1960 to 1970. Mian Muhammad Shafi the main witness produced by Mr. Mumtaz Ahmad Khan and a close associate of his and a recognized journalist of standing also made statement in his affidavit and in cross‑examination which are relevant and decisive of the claim of Mr. Mumtaz Ahmad Khan. In his affidavit he stated as follows: "

2. At the time of partition when all the Hindu staff of the A.P.I. migrated to India, the Pakistan Government commissioned Malik Taj‑ud‑Din, Manager of Lahore A.P.I. Office to organize Associated Press of Pakistan (A.P.P.) as its Managing Director and General Manager. Accordingly, Malik Taj‑ud‑Din placed Lahore under the charge of Mumtaz Ahmad Khan who recruited about half‑a‑dozen young men and trained them in the different fields of reporting and sub‑editing in a short time, and thus converted the almost vacant A.P.I. Office into a full‑fledged A.P.P. Office humming with activity.

3. In July 1948, the late Raja Ghazanfar Ali Khan on his appointment as Pakistan's First Ambassador to Iran and Iraq borrowed the services of Mumtaz Ahmad Khan from the A.P.P. for one year to publicise Pakistan in Iran and Iraq. Mumtaz Ahmad Khan returned to Pakistan in September 1949 after rendering meritorious services in Iran and Iraq.

4. In December 1951 he was appointed Deputy General Manager of the A.P.P. at Karachi but he declined to shift to Karachi for personal reasons and resigned from the A.P.P.

5. In 1952, Mu.mtaz Ahmad Khan and myself jointly brought out a political weekly named 'Iqdam' from Lahore which was managed, published and edited by us jointly and was later closed down under Government pressure sometime in late sixties." In cross‑examination the following questions and answers reflect the basis of the claim made by Mr. Mumtaz Ahmad Khan: Q:‑ Is it correct that in the first instance A.P.P. was a joint stock company of which Malik Taj‑ud‑Din was the Managing Director? A:‑ I do not know the original position of A . P . P. immediately after partition but this much I know that Malik Taj‑ud‑Din was incharge. Q.‑ Is it correct that soon after partition, Malik Taj‑ud‑Din created Eastern News Trust which became the owners of A.P.P. and Malik Taj‑ud‑Din was its life president? A: - Yes. This was generally known as such. I have known the respondent since middle of Forties. Therefore, I know him since before partition. As far as I know, respondent was never the trustee of Eastern News Trust and he was not a Director of A.P.P. Q.‑ Is it correct that from July 1948 to end of 1949 the respondent was working as Attache in the Pakistan Embassy at Teheran? A:‑ I do not know whether he worked as Attache as suggested by learned counsel. I have no personal knowledge whether the respondent joined Government service. Q:‑ In pare 3 of your affidavit dated 1‑3‑1987 you have stated that in July 1948 late Raja Ghaznafar Ali Khan on his appointment as Pakistan's first Ambassador to Iran and Iraq borrowed the services of Mr. Mumtaz Ahmad Khan from A.P.P. for one year to publicise Pakistan in Iran and Iraq. On what basis you have made this statement? A:‑ Before he went to Iran, respondent's friends and admirers had given him several parties and also organised functions which were attended by me. These functions and parties were being arranged/given because it was generally believed that Raja Ghazanfar Ali Khan had commissioned his services. I had also reported this in 'Pakistan Times' as Chief Reporter of '‑Pakistan Times'. Q: ‑ Is it correct that in those parties and functions it was also mentioned that the respondent was going as Assistart Press Attache at the Pakistan Embassy in Iran in Teheran? A:‑ I do not rememeber this. Q:‑ Did you discuss the precise reason with the respondent in those parties and functions that in what capacity he was going to Teheran? A:‑ This was not specifically discussed by me.with the respondent. Q:‑ Kindly refer to pars. 5 of your affidavit dated 1‑3‑1987 where you have stated that you and the respondent had jointly brought out weekly 'Iqdam' from Lahore which was managed, published and edited by you jointly. It is put to you that this statement is incorrect and your attention is invited to Ex.1511, your declaration dated 15‑9‑1952 under section 5 of the Act of 1867 and your application to the District Magistrate, Lahore which has been produced as Ex.15/2. A:‑ Myself and respondent were co‑allottees and then cc‑owners of the Press in question and both of us had decided jointly to take out a political weekly for championing the cause of the masses, the people the under‑dog. However, for convenience only my name was given in these declarations so as to face criminal prosecution and persecution. I was well known in the journalistic sections and the respondent was also not keeping good health and I was also a Member of the Provincial Assembly at that time. Q:‑ Is it correct that the respondent is not a member of any of the following Unions:‑

1. Union of Journalists?

2. Punjab Union of Journalists?

3. Federal Union of Journalists? A:‑ At present as far as I know he is not a member of these three Unions. Q:‑ Ex.15/4 shows that the Editorial Board of weekly 'Iqdam' comprised three persons, namely, yourself, respondent and one Abdullah Butt? A:‑ Yes. Q:‑ It is put to you that the connection of respondent with Iqdam was limited to this. A:‑ Yes. (Note.‑ The witness was explained the question again and then he answered). Apart from being one of the editors of weekly 'Iqdam' he was co‑proprietor of the paper." In this background of the facts the Election Tribunal was required to interpret the law. The relevant portion of it (section 5 of the Order) is reproduced hereunder:‑ "

5. The Senate.‑(1) As provided in Article 59 of the Constitution‑‑‑ (a) The Senate shall consist of eighty‑seven members, of whom (i) ... ........ ....... ........ ... (il) ... ........ ....... ........ ....... ... iii) ... ........ ....... ........ ....... ... (iv) five shall be elected by the members of each Provincial Assembly to represent Ulema, technocrats and other professionals: (b) (a) (i) .. (ii) . (iii) ... ........ ....... ....... ....... ... Explanation.‑ In this clause:‑ (a) "Alim" means a Muslim scholar with high qualifications in religious education recognised by the University Grants Commission or having specialized knowledge of Tafseer, Hadith, and Fiqh, to his, credit and engaged for at least fifteen years in dissemination of these subjects either as an Imam in a Jamia Mosque or as a teacher or researcher in an educational or research institution or as a practitioner in Islamic Law: (b) 'technocrat' means a person of nationally or internationally recognised professional competence with at least fifteen years experience and expertise at a high level for administering or managing an operation or policy‑making unit; and (c) 'professional' means a person of distinction with nationally or internationally recognised professional qualifications and practical experience at a high level in a specialised area of knowledge who has been practising in his specialisation by adopting it as his principal calling, vocation or employment." The Tribunal first examined whether Mr. Mumtaz Ahmad Khan qualified as a professional, the requirements whereof were summarised as follows: ‑ "(a) He must be a person of distinction; (b) He must possess nationally or internationally recognized professional qualifications; (c) He must have practical experience at a high level in a specialized area of knowledge; and (d) He has been practising in his specialized field as his principal calling, vocation or employment." It was held by the Election Tribunal that Mr. Mumtaz Ahmad Khan satisfied three out of four requirements of being a professional but not the first, namely, of being a person of distinction. The conclusion reached, in the words of the Tribunal, was as follows:‑‑ "The respondent, in my view, therefore, fullfils three of the four requirements of 'professional' but, as he is not a 'man of distinction' he is not a 'professional' as defined in the Explanation in Article 5 of the Houses of Parliament and Provincial Assemblies (Elections) Order 5 of 1977." The Tribunal thereafter proceeded to examine whether Mr. Mumtaz Ahmad Khan qualified as a technocrat and after taking note of provision of law and the two decisions of this Court then available namely, Ihsanul Haq Piracha v. Waseem Sajjad (P L D 1986 S C 200) and Dr. Aon Muhammad Khan v. Saeed Qadir (P L D 1987 SC 490), l the requirements of a technocrat were formulated as hereunder:‑ (a) The candidate must possess nationally or internationally recognized professional competence; (b) The candidate must have experience and expertise of 15 years for administering or managing an operational or policy‑making unit; and (c) Such experience and expertise should be at a high level. With regard to the satisfaction of the first condition the Tribunal concluded as hereunder:‑ "it has already been found in the discussion relating to the definition of 'professional' that the respondent is the holder of a Diploma in Journalism from Punjab University which was awarded to him in 1944 after he had passed the Diploma examination on completion of one year's course and that this Diploma in Journalism is recognized nationally. The respondent, being a holder of such Diploma and having experience in the field of journalism as detailed in the earlier part of this judgment, in my view possesses nationally recognized professional competence in the field of journalism." The next two requirements were also held to be established and satisfied and on that account he was held to be eligible and qualified. In the case of Ihsanul Haq Piracha while examining the requirements of a technocrat the following law was laid down by this Court: "The scheme of the Explanation under consideration appears to be to emphasize in Explanation (c) professional qualification, its recognition and experience in a specialized area of knowledge, and practice in that particular specialization. In contra‑distinction to it there is no mention of qualification in Explanation (b). It talks of professional competence and experience and expertise for administering or managing a unit. Expert has been defined in Black's Law Dictionary as 'one who is knowledgeable in specialized field that knowledge being obtained from either education or personal experience one who by habits of life and business has particular skill in forming opinion on subject in dispute'. Experience and expertise and absence of use of the word qualification in Explanation (b) emphasizes the practical side rather than the academic. We, therefore, agree with the finding that 'a person without professional qualification but who is otherwise professionally competent, which professional competence is nationally or internationally recognized, can become a 'technocrat' if he fulfills the other conditions in the definition of technocrat. The word 'Recognized' has been defined in Black's law Dictionary as 'Actual and publicly known' The national or international recognition of professional competence of an individual may come about in various forms‑‑ direct and indirect. Instances of direct recognition have been noted by the Election Tribunal in the words that follow: 'Recognition is a formal or official act by a university, seat of learning or professional body and I would add to these bodies the Government.' Undoubtedly: instances of direct recognition noted by the Election Tribunal will certainly ex facie establish the competence of the individual. There, however, appears no particular reason to restrict the recognition only to such direct and formal acts. The indirect recognition at the national level may come about in diverse forms‑‑in associating the professionally competent individuals in framing of the policies at the national level, in administering institutions and projects and in representations abroad in a particular speciality. The 'high level' should not be restricted to the highest level because it implies a level lower than the highest and higher than the intermediate. The degree of independence and the absence of accountability are tests extraneous to the requirement. We would, therefore, endorse the view taken by the Election Tribunal that 'high level has reference to experience and expertise' and it need not be in the capacity of head of ministries, statutory corporations' etc." The Election Tribunal by observing that "being a holder of such Diploma and having experience in the field of Journalism as detailed in the earlier part of this judgment in my view possesses national recognized professional competence in the field of journalism" failed to ensure the satisfaction of the condition of national or international recognition of professional competence. The professional qualifications possessed may be nationally recognized but, as noted by the Tribunal itself, in its earlier judgment in Ihsanul Haq Piracha's case and the law laid down by this Court, there had to be a further examination of the question whether recognition of competence in the field of journalism was forthcoming in the form laid down. To be managing A.P.P. unit which was private company in its nascent stages or serving as a Pakistan correspondent of reputed Reuter's or as a co‑Editor of Iqdam or to be or: the Editorial Board of Concept did not and could not satisfy the requirement of the law, of national or international recognition of competence. It is significant that Mian Muhammad Shafi a close associate of Mr. Mumtaz Ahmad Khan and having known him since 1940 or so eeuld not tell what was the exact job description on which he remained in Iran. Such a deficiency in job description got accentuated by the statement of Mr. Mumtaz Ahmad Khan and the absence of any reference to a letter of appointment or description of it in a civil list or in contemporary record of Government. It cannot be said that his competence was nationally or internationally recognized. Coming now to the appeal of Mr. Mumtaz Ahmad Khan himself, undoubtedly as the record goes he possessed the Diploma in Journalism which ;vas, I take it, the highest that could be obtained within the country at that time. This is apart from the serious efforts made by Dr. Syed Farooq Hassan that his academic record was tampered with and suffered from too many infirmities and irregularities at the hands of those who were custodian of such record. The Tribunal has, to my mind, correctly held that Mr. Mumtaz Ahmad was not a person of distinction. To be in a profession of journalism, to be on the Editoriall Board, to be co‑Editor of a Magazine and to be Press Attache in a foreign mission is, by itself no indication of a man having secured distinction and eminence in the field of journalism. The claim of Mr. Mumtaz Ahmad Khan that he organized the Pak.‑China Friendship Association Lahore in 1957, that he pursuaded Lahore Municipal I Corporation in naming a particular round about as China Chowk, and that he was the only Pakistani who has so far made a speech from Radio Beijing, do not make him person of distinction in the field of journalism. The selection of books written by him, by U.S. Congress Library may be a factor to be noted but by itself not decisive of the question. The reservation made for a distinct professional or occupational group,in the highest legislative body of the country is an exception . and a special provision which has to be interpreted strictly and only F those who satisfy the conditions of competence, of qualification, of experience and of standing as prescribed in the law can be held eligible. There can be no relaxation of the requirement, no dilution, no mitigation in the requirements of the law. On these principles I; am quite clear in my mind that Tribunal correctly held that Mr. Mumtaz Ahmad Khan was not a person of distinction in the field of journalism in the country and on that account could not be elected to C the Senate on a reserved seat for Ulema, Professionals and Technocrats. I have confined the examination of the case of the appellants to the legal question of eligibility arising in these appeals and have gone to the facts only so far as. these were relevant for the determination of those questions. I am not passing any judgment on the factual controversy with regard to the fabrication of the record, the misdeclaration contained in the nomination paper and the affidavit and the conduct generally attributed to the candidate or to the other questions like the required number of years standing being satisfied by Mr. Mumtaz Ahmad Khan because in my view the decision on the above two material points is sufficient to decide the appeals. With regard the claim of Dr. Syed Farooq Hassan to be declared elected, if Mr. Mumtaz Ahmad is found to be ineligible, for the reason that after such exclusion of Mr. Mumtaz Ahmad Khan he would be the only candidate left in the field it has been emphasised by the former that he had taken good care to approach every voter who was a member of the Provincial Assembly to inform him of the dis‑qualification of the latter and the higher values, and the exact issues involved in the process of the election to the reserved seat of the Senate and in this background the disqualification of the candidate would by all standards be notorious. I have examined this aspect of the relief sought by Dr. Syed Farooq Hassan. All said and done it is a fact that Mr. Mumtaz Ahmad Khan was a party candidate and according to the discipline required and prevailing the voters who were party members were expected to vote for the party candidate without seriously questioning his disqualification, suitability or merit. Not that they were necessarily to so conduct themselves or that there was any legal mandate for it because in any case the balloting was secret. It was only the expectation, the normal functioning of the party system and the normal requirement of it. Besides, the judgment was being delivered on 5th March, 1988 and in any case the term of the candidate in view of the draw of lot is to expire on 20th March, 1988. Such a short span which may be consumed in giving effect to the judgment itself would hardly leave any time to avail of the grant of this part of the relief. In my short dissenting note I have already explained why these two appeals have not become infructuous. Nothing more be said on the subject. In view of the discussion above the appeal of Dr. Syed Farooq Hassan merits to be allowed to the extent that Mr. Mumtaz Ahmad Khan is held to be not qualified either as a professional or as a technocrat to be elected to the seat reserved for Ulema, Technocrats and Professionals and his election, therefore, is liable to be declared void and set aside. His appeal with regard to his being declared unopposed elected to that reserved seat is however, liable to be dismissed. The appeal of Mr. Mumtaz Ahmad Khan is liable to be dismissed. No order as to cost. NASIM HASAN SHAH, J.‑‑My learned brethren have not agreed with me that the appeal of Dr. Farooq Hassan has become infructuous and that no useful purpose would be served by disposing it of on merits. On merits they have found that Mr. Mumtaz Ahmad Khan is neither a "technocrat" nor a "professional" and are, therefore, of the opinion that Dr. Farooq Hassan's appeal should be allowed. I regret I cannot agree. I have already indicated the reasons for my opinion that the appeals have become infructuous which need not be repeated. As for the merits I agree with my brother Shafiur Rahman, J. that Mr. Mumtaz Ahmad Khan does not fall within the category of a "technocrat" as defined in the relevant law but in my opinion he clearly qualifies as a "professional" as defined therein. According to this law a "professional" means "a person of distinction with nationally or internationally recognised professional H qualifications and practical experience at a high level in a specialised area of knowledge who has been practising in his specialisation by adopting it as his principal calling, vocation or employment." According to the Tribunal the attributes of a person claiming to be a "professional" are that‑ (a) He must be a person of distinction; (b) He must possess nationally or internationally recognized professional qualification; (c) He must have practical experience at a high level in a specialized area of knowledge; and (d) He has been practising in his specialized field as his principal calling, vocation or employment. Furthermore, according to the Tribunal, Mr. Mumtaz Ahmad Khan satisfied the last three attributes, but lacked the first, namely, of being a person of distinction. While discussing this aspect, the Tribunal observed:‑ "In my view 'a person of distinction' does not refer to an above average person or even a person who can be described as 'good' or 'very good' in his field. When reference is made to an individual as a person of distinction, it connotes a person of eminence or excellence in his field; an individual of exceptional qualities and attainments placing him much above the above‑average, the good and the very good; a person who has been honoured or recognised by his community or country or internationally for achievements in any field; a person who is among the top people in his profession. To name a few individuals who can be described as men of distinction without any reservations, one can mention Quaid‑i‑Azam in the field of politics; Allama Iqbal as a poet and philosopher; late Mr. Manzoor Qadir, Mr. A. K. Brohi and Mr. Mahmud Ali Qasuri and several others in the legal profession; Imran Khan and Jehangir Khan in the field of sports. Then there are and can be many others who have attained or achieved eminence or excellence in their special fields " My brother Shafiur Rahman, J. appears to have agreed with this view and has observed:‑ _ "I am quite clear in my mind that Tribunal correctly held that Mr. Mumtaz Ahmad Khan was not a person of distinction in the field of journalism in the country and on that account could not be elected to the Senate or.‑ a reserved seat for Ulema, Professionals and Technocrats. The reasons for taking this view were given earlier in the following words‑.‑ "The reservation made for a distinct professional or occupational group in the highest legislative body of the country is an exception and a special provision which has to be interpreted strictly and only those who satisfy the conditions of competence, of qualification, of experience and of standing as prescribed in the law can be held eligible. There can be no relaxation of the requirement, no dilution, no mitigation in the requirements of the law." But what has been overlooked and I say so with respect, is that on the basis of the criterion laid down by the Tribunal and by my learned brother Shafiur Rahman, J. for adjudging who can be a "professional" Dr. Farooq Hassan would not himself qualify as such. Undoubtedly he has a most distinguished and enviable academic record but can hardly boast of any practical experience of the practice of law at a high level much less be described as a person who is among the top people of his profession‑‑ which, according to the Tribunal, is a necessary ingredient for any ore claiming to be "a person of distinction". Dr. Farooq Hassan's appeal to challenge the election of Mr. Mumtaz Ahmad Khan on the ground that he is not a "professional" is liable to be dismissed on this short ground. Even otherwise both the Tribunal as well as my learned brother accept that Mr. Mumtaz Ahmad Khan fulfils the other three conditions which a person claiming to be a "professional" must satisfy, namely, he possesses a nationally recognised professional qualification, he possesses practical experience at a high level in the field of his calling (journalism), and that he has been practising in his specialised field as his principal vocation. The only attribute he lacks is that he is not a person of distinction in his field. But my learned brother has not said why not? According to him:‑ "To be in a profession of journalism, to be' on the Editorial Board, to be co‑Editor of a magazine and to be Press Attache in a foreign mission is, by itself no indication of a man having secured distinction and eminence in the field of journalism. The claim of Mr. Mumtaz Ahmad Khan that he organized the Pak.‑China Friendship Association Lahore in 1957, that he persuaded Lahore Municipal Corporation in naming a particular roundabout as China Chowk, and that he was the only Pakistani who has so far made a speech from Radio Beijing, do not make him person of distinction in the field of journalism. The selection of books written by him, by U.S. Congress Library may be factor to be noted but by itself not decisive of the question. " It is, however, not stated as to what he should have done which could have indicated that he was "a man having secured distinction and eminence in the field of journalism". If a person who started his career as a journalist in 1945, kept the only News Agency of Pakistan (APP) going in the sombre and perilous days after the Partition in August 1947, was selected as a Press Attache for a Pakistani Diplomatic Mission abroad and sent in 1953 as a Member of the first ever Delegation of Journalists to be sent abroad from Pakistan, co‑edited a weekly (Iqdam) and a Daily (Afaq) from Lahore upto 1964, acted as Chairman of the Foreign Press and Briefing Committee of the Pakistan National Alliance (PNA) during its nation‑wide movement launched against the Bhutto Government in 1977, authored three books based on the experiences gathered while working in his profession; is not sufficient to make a journalist a "man of distinction" in his field, I wonder what is? In my humble opinion, a realistic and practical interpretation consistent with and conforming to our conditions rather than an idealistic or utopian, interpretation has to be given to the terms "Ulema, technocrats or other professionals" used in the relevant law. Otherwise, I dare say, hardly more than one or two, out of all the members who have been elected to the seats reserved for the "Ulema, technocrats or other professionals" could be held to be qualified to do so. Accordingly any declaration by this Court, which has the effect of nullifying the choice of the electors, on the ground that their nominee did not strictly fall within the requisite professional or occupational group, although ostensibly he did so, must be made with the greatest caution and the utmost reticence. It is only where a case of disqualification of an elected candidate is clearly made out that the Court should interfere to nullify the choice of the electors‑ in this case the members of the Provincial Assembly. On this view of the matter, I do not think that the present case is at all apposite for this Court to interfere. In the result, I would dismiss the appeal of Dr. Farooq Hassan, but leave the parties to bear their own costs. ORDER OF THE COURT It is held by majority that Mr. Mumtaz Ahmad Khan does not qualify either as a technocrat or as a professional as defined in Article 5 of Houses of Parliament and Provincial Assemblies (Elections) Order 1977. Therefore, the appeal filed by Dr. Farooq Hassan (Civil Appeal No.338 of 1987) succeeds and is accepted and that of ‑Mr. Mumtaz Ahmad Khan (Civil Appeal No.378 of 1987) fails and is dismissed. Dr. Farooq Hassan, however, cannot be held as the sole unopposed candidate in the field and his claim to the seat in substitution of Mr. Mumtaz Ahmad Khan must, therefore, fail. Both the appeals stand disposed of in the above terms No costs M. B. A./F‑41/S Order accordingly