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1994 CLC 648

SYED ABDUL AZIZ NASIR HAQQANI ALIAS PIR AZIZ ULLAH HAQQANI
V/S
RETURNING OFFICER FOR PRESIDENTIAL ELECTION(CHIEF ELECTION

Per Ch. Mushtaq Ahmad Khan, J.

(a) Constitution of Pakistan(1973), Article 41 and 2nd Schedule.

A plain and joint reading of the aforementioned provision of the main provisions of the Constitution and the Schedule clearly shows that election of the President is to be held in accordance with the provisions of Second Schedule by the members of the electoral college consisting of the members of both the Houses of the Parliament and members of the Provincial Assemblies. The nomination paper of a candidate has to be proposed and sconded by a voter and in case it is not so proposed or seconded the said nomination paper shall be invalid; that poll shall be by secret ballot; the ballot paper shall be issued to a voter on the date and during the course of the period fixed for poll and that the validity of the election of the President shall not be called in question by or before any Court or other Authority. Admittedly, the nomination of the petitioner has not been proposed by any voter, hence, the nomination paper in question is invlaid as per provisions of the Constitution referred to above. The Returning Officer, therefore, was under a lawful duty to reject the nomination paper as the same has not been executed and filed in accordance with the provisions of the Constitution of Pakistan. It is an established legal proposition that if an act is provided to be done in a particular manner, it has to be done in that manner and not otherwise and in case the same is done in the manner not provided for, the act shall be illegal and void as held in case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61)at page 70-71. [p. 654, 655] A

(b) Constitution of Pakistan (1973) Articles 41, 2A and 2nd Schedule

A bare reading of the aforementioned portion of the preamble clearly shows that the people have to exercise their power and authority through their chosen representatives, hence, the requirement of signing of a nomination paper by a proposer and a seconder in fact vests the authority even to nominate and manner destroys or diminishes the rights of the people to elect the President, hence the above contention raised by the learned counsel for the petitioner has no force and the same is repelled. [p. 657] B

(c) Constitution of Pakistan (1973) Articles 41, 226 and Second Schedule, para 12.

Argument of the learned counsel for the petitioner to the effect that the requirement of signing a nomination paper by a proposer and a seconder is violative of the provisions of Article 226 of the Constitution of Islamic Republic of Pakistan, 1973, which is reproduced as under :—

“Article 226.—Ali elections under the Constitution shall be by secret ballot.”

Is also misconceived and is based upon misunderstanding of the correct factual and legal position. However, the secrecy which is required to be observed as is clear from the joint and harmonious reading of Articles 41, 226 and para. 12 of the Second Schedule is to be that of the ballot. Signing of nomination paper of a person by a voter as a proposer or a seconder in no way affects the secrecy of ballot and it is not necessary that a voter who has signed a nomination paper of a candidate as proposer or a seconder may have actually voted for the said person as the ballots have to be issued and polled on a date subsequent to the signing and filing of the nomination paper. Learner counsel for the petitioner has also ultimately conceded that the condition in question is not against the principle of secrecy of ballot.

(d) Constitution of Pakistan (1973) Articles 41, 2A & 2nd Schedule.

Last argument of the learned counsel for the effect that the requirement of signing of a nomination paper by a proposer and a seconder is violative of the Injunctions of Islam is also incorrect and is misconceived. In Islam in fact a candidate has no right to offer himself as a candidate for a Public Office. It is the voter who is to propose, second and elect him for the said Office. Consequently, the whole argument appears to be based upon misconceived notice of the Islamic Law and the Islamic history inasmuch as the four Caliphs never offered themselves to be elected as Head of the State. [p. 657] D

(e) Constitution of Pakistan (1973), Articles 41, 2A, 199 and 2nd Schedule.

In the case in hand admittedly the requirement of signing of a nomination paper by a seconder and a proposer is provided under the Constitution itself. Therefore, even if the argument of the learned counsel for the petitioner is given some weight which it has not, this Court is not competent to strike down the Constitutional provision and unless and until the said requirements are a part of the Constitution it cannot be said that a nomination paper filed in violation of the said condition is invalid. Consequently, we hold that the order passed by the Returning Officer rejecting the nomination paper of the petitioner is quire in accordance with the provisions of the Constitution which are valid and which cannot be declared to be illegal in exercise of the Constitutional jurisdiction of this Court. This writ petition is also not maintainable for the reasons that the election of the Office of the President is scheduled to be held on 13-11-1993. All the machinery responsible for holding of the said election is in full gear. As per provisions of Article 41, sub-Article (6), the validity of the election of the president cannot be called into question by or before any Court or other Authority. Filing of nomination paper and rejection thereof are steps taken during the course of election of the President. Consequently, the word “election of the President” as used in Article 41, sub-Article (6) shall include the final election as well as a part thereof, hence there is a Constitutional bar on the powers of this Court to call in question the final election of the President or a part thereof in exercise of the Constitutional jurisdiction of this Court as is clear from the provisions of Article 199 of the Constitution itself which provides with the powers under this Article have to be exercised subject to other provisions of the Constitution. As there is a clear bar of jurisdiction as provided under Article 41(6) of the Constitution of Islamic Republic of Pakistan, 1973, no relief can be granted to the petitioner in exercise of the Constitutional jurisdiction of this Court. [p. 663 & 64] E

Advocate for the Petitioner :
Shamim Wahid

Standing Counsel, Federation of Pakistan (on Court’s call) :
Mansoor Ahmad.

Date of hearing : 10th of November, 1993.

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