IN THE HIGH COURT OF SINDH, KARACHI

Constitutional Petition No. D – 974 of 2014

 

     PRESENT:

 MR. JUSTICE AQEEL AHMED ABBASI.

                                                                  MR. JUSTICE ARSHAD HUSSAIN KHAN

 

Haji Gul Ahmed s/o Wali Muhammad

 

Vs.

 

Federation of Pakistan and others

 

 

 

 

 

Petitioner:                               In person.

 

For Province:                         through Mr. Saifullah, Assistant Advocate General Sindh.

 

For Federation:                      through Mr. Mir Hussain, Assistant Attorney General.

 

 

Date of Hearing:                     07.12.2017.

 

Date of Order:                         07.03.2018.

 

O R D E R 

Aqeel Ahmed Abbasi, J. Through instant petition, the petitioner, who is appearing in person has sought for directions of this Court to the effect that re-scrutiny of the Nomination Papers of the Members of the Parliament shall be made either through the Islamic Ideology Council or through a Committee of practicing Muslim Scholars, and till such scrutiny, the Membership of all the Parliamentarians shall be suspended.  The petitioner present in person, submits that pursuant to Article 227 of the Constitution of the Islamic Republic of Pakistan, 1973, all the existing laws of the country are required to be brought in conformity with injunctions of Islam as laid down in the Holy Quran and Sunnah, however, according to petitioner, such exercise has not been completed so far.  Petitioner submits that in terms of Article 62 (d)(e)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, scrutiny of Nomination Papers of all the candidates contesting elections of the Parliament, is to be made by the Election Commission of Pakistan, however, no proper scrutiny has been made by the Election Commission of Pakistan nor any mechanism has been provided under the Election Laws to ensure that all the candidates participating in the National Elections shall fulfill the requirement of Article 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973.  Petitioner has also sought amendment in the prescribed Oath of the Parliamentarians’ and has prayed that directions may be issued to the Election Commission of Pakistan to do the needful in this regard. 

 

2.         Preliminary objection was raised by the office with regard to maintainability of instant petition against respondents No. 4 and 5 i.e. Speaker National Assembly and Chairman Senate respectively, in view of Article 248 of the Constitution of the Islamic Republic of Pakistan, 1973, whereas, petitioner was also confronted as to how instant petition is maintainable in view of the fact that similar petition filed by the petitioner, has also been dismissed on the same grounds.  In response to such office objection, petitioner submitted that Article 248 does not apply in the instant case, whereas, according to petitioner, earlier petition was decided only in respect of prayer seeking amendment in the Oath. According to petitioner, in the instant petition, petitioners wants re-scrutiny of the Nomination Papers of all the Parliamentarians in terms of Article 62(d(e)(f) of the Constitution of the Islamic Republic of Pakistan, 1973.

 

3.         Record shows that when the matter was fixed in Court on 25.03.2014, petitioner requested that instant petition may be taken up for hearing alongwith C.P.No.D-1070/2014 and thereafter, instant matter was

taken up for hearing alongwith aforesaid petition.  However, as per case diary of instant petition, except few dates of hearing, instant matter was adjourned from time to time, whereas, C.P.No.D-1070/2014 was disposed of along with listed applications vide order dated 15.05.2014, however, no substantial progress could be made in the instant case by the petitioner. In the aforesaid petition, various applications were filed, including contempt application(s), which were also dismissed vide order dated 11.01.2017.

 

4.         Notices of the instant petition were issued to the respondents, pursuant to which, comments have been filed on behalf of respondent No.2, however, no one shown appearance on behalf of the political parties who have been impleaded as respondents in the instant matter. As per comments filed on behalf of respondent No.1 i.e. Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad, it has been stated that Members of all the Assemblies have already taken Oath in the prescribed manner under the Constitution and the Election Laws, pursuant to National as well as Provincial Elections held in the year 2013, therefore, request of the petitioner for re-scrutiny of the Nomination Papers of all the Parliamentarians as per provision of Article 62 of the Constitution and Declaration on Oath as proposed by the petitioner through instant petition is totally misconceived.  Similarly, comments have also been filed on behalf of respondent No.2 i.e. Provincial Election Commission Sindh, wherein, it has been stated that in terms of Article 218(3), the Election Commission is duty bound to conduct the elections, honestly, justly and fairly in accordance with the Constitution and prevailing election laws, whereas, Article 62 and 63 of the Constitution relates to the qualification and disqualification of a member of Majlis-e-Shoora (Parliament) and if such Member does not fulfill the requirements as mentioned in the aforesaid Articles, their forms can be rejected by the Election Commission.   As per comments of respondent No.2, all the Returning Officers scrutinize the Nomination Forms of the candidates, keeping in view the requirements of the Election Laws as well as the Constitutional provision i.e. Article 62 and Article 63 of the Constitution, relating to qualification and disqualification of a candidate.  As regards the prayer of the petitioner relating to amendment in the Nomination Form relating to Oath, similar petitions filed by the petitioner including C.P.Nos.D-1379/2013 and 1070/2014, have already been dismissed by a Divisional Bench of this Court.

 

5.         Learned Assistant Attorney General while supporting the comments filed  on behalf of the respondents, contended that instant petition and the relief sought therein, besides being misconceived in law, cannot be examined by this Court under Article 199 of the Constitution, whereas, petitioner is neither an aggrieved person nor could point out any infringement of fundamental rights as guaranteed under the Constitution, which may require this Court to enforce by issuing a writ for such purpose.  It has been argued that similar petitions filed by petitioner have already been dismissed, hence, prays that instant petition may also be dismissed.     

 

6.         We have heard the petitioner and the learned Assistant Attorney General, perused the record and the comments filed on behalf of the respondents. From perusal of the content of memo of petition, it transpires that petitioner has sought for directions of this Court to the Election Commission of Pakistan to carry out re-scrutiny of all the Members of the Parliament through Islamic Ideology Council or a Committee comprising of Muslim Scholars in terms of Article 62 and 63 of the Constitution, whereas, it has been further prayed that unless such scrutiny is complete, Membership of all the Parliamentarians shall be suspended. Similarly, reference to Article 227 of the Constitution by the petitioner in the instant matter appears to be for the sake of reference only, as the petitioner has not been able to refer to any enactment, particularly, relevant provision of Election Laws, which according to the petitioner, is not in conformity to Article 227 of the Constitution of Islamic Republic of Pakistan, 1973.  Likewise, reference to the provisions of Article 62(d)(e) & (f) is also for the sake of reference only, as the petitioner has not been able to refer to any of the provisions of the Election Laws i.e. Peoples Representation Act, 1976 or the Election (Amendment) Act, 2017, whereby, application of Article 62 or Article 63 of the Constitution on the Nomination Forms would have been ousted or curtailed in any manner at the time of scrutiny of such Nomination Papers by the Returning Officers or the Election Commission of Pakistan.  Petitioner has not cited any instance, whereby, at the time of scrutiny of Nomination Papers of the candidates, who participated in the National/Provincial Elections, 2013, such aspect of the matter would have been ignored. The petitioner has not been able to support his assertion that the Election Commission of Pakistan does not make the scrutiny of the Nomination Papers of the Parliamentarians keeping in view the spirit of Article 62 and 63 of the Constitution as well as the relevant provisions under the Election Laws relating to qualification and disqualification of the candidates.  It has also been pointed out in the comments filed on behalf of respondents that the petitioner had earlier filed similar petitions, which have already been dismissed, which include C.P.Nos.D-2185/2012, 1576/2013 and 1070/2014, whereafter, petitioner filed various applications as well in such petitions, which have also been dismissed by various Benches of this Court.  Recently, this Bench has dismissed the applications filed by the petitioner, after final decision in C.P.No.D-2185/2012, through our detailed order dated 17.01.2018, which related to amendment in Oath.  We have not been able to persuade ourselves to grant any relief to the petitioner in the instant case as neither petitioner is an aggrieved person nor he could point out enforcement of fundamental right or any violation of Constitutional or legal provision by the respondents, which could possibly require any interference by this Court under Article 199 of the Constitution. On the contrary, it appears that petitioner requires amendment in Election Laws, which is the domain of the Parliament and can be brought through 2/3rd majority in the Parliament.  Moreover, such request of the petitioner for re-scrutiny of the Nomination Papers of the Parliamentarians at this stage, when the term of the Assembly is about to be completed, otherwise, will serve no useful purpose, therefore, the relief sought by the petitioner to this effect cannot be granted for having become infructuous.  It is pertinent to note that during pendency of instant petition, new legislation relating to Election Laws i.e. Election (Amendment) Act, 2017 (Act No.XXXV of 2017) has been made by the Parliament, therefore, petitioner would be at liberty to challenge any provision of law, which according to petitioner, would be liable to be struck down for being unconstitutional or in conflict with the Article 227 of the Constitution, by approaching before the appropriate forum or Court of Competent jurisdiction in accordance with law.

 

7.         Accordingly, we do not find any substance in instant petition, which is hereby dismissed alongwith listed applications           

 

   JUDGE

                                                                        JUDGE

 

 

 

 

 

 

 

 

 

A.S.