2023 PLP 588 (CLC)

ATHAR MINALLAH, C.J.

Through this consolidated judgment I will decide the instant petition along with W.P. No.420/2019, titled "Khurram Sher Zaman v. Asif Ali Zardari, etc." and W.P. No. 423/2019, titled "Muhammad Usman Dar v. Asif Ali Zardari, etc."

2. The petitioners have sought a writ that Mr. Asif Ali Zardari and Mr. Fawad Ahmed Chaudhary [hereinafter referred to as the "Respondents"] be declare as disqualified under Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred to as the "Constitution"]. Both the Respondents were elected by their respective constituents to represent them in the Majlis-e-Shoora (Parliament). There is no declaration by a competent court against the Respondents nor have they been convicted. Their disqualification is being sought on the basis of disputed questions of fact which would require probe by this Court. Such a probe could have profound consequences not only for the Respondents but their constituents as well. During the probe, the opponents of the Respondents would definitely gain a political advantage. If ultimately the petitions are dismissed, irretrievable damage would have already been caused to the Respondents due to the nature of the probe. The election process is regulated under the Elections Act, 2017 [hereinafter referred to as the "Act of 2017"]. The Act of 2017 provides for adequate remedies.

3. It is noted that this Court vide judgment rendered in the case titled "Muhammad Usman Dar v. Khawaja Mohammad Asif and others" [PLD 2018 Islamabad 214] had disqualified an elected representative under Article 62(1)(f) of the Constitution. The declaration was made on 26.04.2018. However, the august Supreme Court had later set aside the disqualification vide judgment rendered in the case titled "Khawaja Muhammad Asif v. Muhammad Usman Dar and others" [2018 SCMR 2128]. The latter judgment was rendered on 19.10.2018. The constituents, therefore, remained unrepresented for more than seven months. Simultaneously, the chosen representative during this period must have been exposed to profound political consequences besides being defamed.

4. In the case titled "Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others" [PLD 2015 SC 275] an Hon'ble Judge of the august Supreme Court, Justice Asif Saeed Khan Khosa, as he then was, has highlighted the extra ordinary challenges faced by a Court in implementing Article 62(1)(f) and the relevant portion is reproduced as follows: "Whether a person is 'sagacious' or not depends upon a comprehensive study of his mind which is not possible within the limited scope of election authorities or courts involved in election disputes. The acumen or sagacity of a man cannot be fathomed. The same is true of being 'righteous' and 'non-profligate'. These factors relate to a man's state of mind and cannot be properly encompassed without a detailed and in-depth study of his entire life. It is proverbial that Devil himself knoweth not the intention of man. So, why to have such requirements in the law, nay, the Constitution, which cannot even be defined, not to talk of proof. The other requirement qua being 'honest' and 'ameen' have a clear reference towards the Holy Prophet's (p.b.u.h.) attributes as 'Sadiq' and 'Ameen'. This as well as other requirements envisaged by the preceding clauses of Article 62, if applied strictly, are probably incorporated in the Constitution to ensure that only the pure and pious Muslims (living upto the standard of a prophet of God Almighty) should be elected to our Assemblies so that, as provided in the Preamble, the sovereignty of God Almighty could be exercised by them in the State of Pakistan as a sacred trust. But, instead of being idealistic, the Constitution of a country should be more practicable. The line of prophethood has long been discontinued and now we are left with sinful mortals. The political arena in our country is full of heavyweights whose social and political credentials outweigh their moral or religious credentials. Even the electorate in our country has also repeatedly demonstrated their Preference for practical wisdom and utility over religious puritanism. Thus, the inclusion of unrealistic and ill-defined requirements in the Basic Law of the Land renders the same impracticable and detracts from the sanctity which the Constitution otherwise deserves."

5. The Respondents have been elected by their constituents and the latter are the sole arbiters of the conduct and character of their chosen representatives. The arena of politics by nature is adversarial. The chosen representatives have an adequate opportunity to evolve a mechanism relating to self-accountability within the Majlis-e-Shoora (Parliament). The involvement of the judicial branch in matters relating to the chosen representatives and their disqualification under Article 62(1)(f) has profound consequences, particularly when it is being sought on the basis of disputed questions of fact. It also affects the rights of the litigants because their valuable time is consumed by conducting roving probes, which otherwise could be dealt with by the Majlis-e-Shoora (Parliament) itself. Sub-Articles (2) and (3) of Article 62 of the Constitution is an efficacious and adequate remedy to disqualify a member of the Majlis-e-Shoora (Parliament) and, therefore, a High Court can refuse to exercise its extra ordinary jurisdiction vested under Article 199 of the Constitution.

6. As judges, we do not claim superiority over the chosen representatives. The high standard of scrutiny associated with the determination of an elected representative as 'sadiq and ameen' has neither been prescribed nor applied in case of other public office holders, including the unelected usurpers who ruled the country for almost-half of its life. An error by a constitutional Court while giving a declaration regarding disqualification can lead to irretrievable harm. Public trust in the chosen representatives is undermined when roving probes are conducted while exercising jurisdiction under Article 199 of the Constitution. The actual stakeholders i.e. the people of Pakistan ought to be trusted in choosing who is to represent them. They alone should have the prerogative to determine whether a person is a 'sadiq and ameen'. It is, therefore, not in public interest for a court to embark upon a probe on the basis of disputed questions of fact so as to form an opinion whether a person meets the idealistic standard of being a 'sadiq and ameen'.

7. The power vested in this Court under Article 199 of the Constitution is extra ordinary and discretionary. The exercise of this power, therefore, can be refused when the Court is satisfied that it would not be in public interest to do so. The Court, therefore, is not inclined to exercise its discretion under Article 199 of the Constitution. The petitioners in two petitions in hand belong to a political party that has considerable representation in the Majlis-e-Shoora (Parliament). Instead of involving the judicial branch of the State, they have an adequate remedy to evolve a mechanism of accountability in the Majlis-e-Shoora (Parliament). The supremacy of the Constitution and the Majlis-e-Shoora (Parliament) can only be upheld if the chosen representatives resolve to settle their disputes without involving the judicial branch. The supremacy of the Majlis-e-Shoora (Parliament) is undermined when controversies, such as disqualification of the chosen representatives, are brought before the courts. The Court, therefore, is not inclined to exercise its extra ordinary discretionary jurisdiction vested under Article 199 of the Constitution and consequently the petitions are dismissed.

8. The above are the reasons for respective short orders, dated 23.02.2022, passed in the aforementioned petitions. MH/233/Isl. Petition dismissed.