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P L D 1998 LAHORE 461

MUHAMMAD RAFIQ TARRAR

V/S

Justice MUKHTAR AHMED JUNEJO, acting chief election
Per: Malik Muhammad Qayyum, J.

(a) Constitution of Pakistan (1973) Arts. 41(2), 62 & 63 —

The Constitution of Islamic Republic of Pakistan, 1973 by itself does not as such provide any qualification which must be possessed by a candidate to the Office of President of Pakistan. But Article 41(2) of the Constitution makes a reference to qualification required by a candidate to the Parliament. [p. 468 & 469] A

(b) Constitution of Pakistan (1973) Art. 199-

Additional District and Sessions Judge/Returning Officer (1994 SCMR 1299) wherein the Supreme Court itself held that if the order passed by the functionary was void or violative of the law or without jurisdiction and had the effect f disfranchising a person, it could be struck down under Article 199 of the Constitution. [p. 473] Q.

(c) Constitution of Pakistan (1973) Arts 41(2), 62, 63 & 199-

It is also to be seen that unlike India, there is no forum provided for resolution of any dispute arising in connection with the election to the Office of President. Therefore, there is no alternative remedy available. Although it is true that in view of the Constitutional command, the election to the Office of the President is outside the purview of jurisdiction of the Court but that ouster is not all pervasive. The power of judicial review under Article 199 of the Constitution is exercisable in cases where the orders passed or steps taken by the functionary are shown to be beyond is authority, violative of the Constitution or the law and are otherwise coram non judice or tainted with mala fide fact or law.[p 473] R

(d) Constitution of Pakistan (1973) Art. 41(2)-

As far as the writ petitioners in Writ Petition No. 29648 of 1997 and 29405 of 1997 are concerned, the nomination papers, in one case were rejected, for the reason, that there was no name of any proposer or seconder while in the other case, neither the proposer of the candidate nor his seconder was voter. Obviously, in the absence of any proposer and seconder or in the absence of jpropser and seconder being voters, the nomination papers could not be accepted and, therefore, no valid exception can be taken therefrom. [p 473] S

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