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P L D 1998 LAHORE 414

MUHAMMAD RAFIQ TARAR
V/S
MR. JUSTICE MUKHTAR AHMED JUNEJO, ACTING CHIEF ELECTION

Per Malik Muhammad Qayyum, J.

Constitution of Pakistan (1973) Arts. 41, 62, 63 & 199 —

For the present, suffice it to say that a reference to Article 41(2) of the Constitution shows that qualifications prescribed for a candidate to the election of the office of President are the same as that of a Member of National Assembly, except to the extent mentioned in Article 41 itself, namely age. The qualifications of the candidate for the membership to Parliament are prescribed by Article 62 of the Constitution which is obvious from the heading of the provision itself. Article 63(1), on the other hand, deals with disqualifications of a member.

Prima facie, therefore, we are of the view that the Returning Officer was not justified in rejecting the petitioner’s nomination on the basis of Article 63(1)(g) of the Constitution of Islamic Republic of Pakistan, 1973.

Article 41(5) of the Constitution mandates holding of election to fill in the vacancy in the office of the President not later than 30 days from the occurrence of vacancy. As such, the process of holding of election and giving effect to it within the period prescribed by the Constitution should not be hampered with. For the same reason, we cannot grant the request of some of the applicants for postponement of the election till after the decision of the petition.

In view of the above, we confirm that order dated 19-12-1997 suspending the operation of the impugned order of the Chief Election Commissioner rejecting the petitioner’s nomination, with the result that the petitioner shall be entitled to participate in the election schedule to be held tomorrow for the office of the President of Pakistan, the result whereof shall be declared and given effect to in accordance with the Constitution ad the law subject to final decision of this petition. [p. 417, 418 & 419] A, B, D & E

Constitution of Pakistan (1973) Arts. 41 & 199 —

So far as the question of jurisdiction is concerned, it is true that Article 41(6) provides that the validity of the election to the office of the President shall not be called in question in any Court but it is too late in the day to argue that a blanket cover is provided to all sorts of acts taken by the functionaries, even though the same may be violative of the law and the Constitution. It has been repeatedly held by the Supreme Court of Pakistan that if a particular act is void, coram non judice or suffers from any jurisdictional error then notwithstanding the validity granted even by the Constitution, it can be struck down by the Court. [p. 418] C

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