SHUJAAT HASNAIN QURESHI Versus RAEES QURESHI

1. JAVID IQBAL, J.‑‑ There are two appeals before us directed aginst the same judgment of the Election Tribunal (Senate) Punjab dated 9th June, 1987. As they arise from one and the same election, these are being taken up and disposed of together by this judgment.

2. Civil Appeal No.141 of 1987 has been filed by Pir Shujaat Hasnain Qureshi appellant against the aforesaid judgment whereby he was held to be disqualified to contest for the general seat to the Senate and if he had been elected as such, was disqualified to continue as Senator.

3. Civil Appeal No.199‑R of 1987 has been filed by the rival candidate of Pir Shujaat Hasnain Qureshi appellant, namely Alhaj Raees Ahmad Qureshi appellant against the same judgment by which he was not declared to be elected to the said seat despite being the candidate with the next highest number' of votes after Pir Shujaat Hasnain Qureshi was held to be disqualified, but instead re‑election was ordered.

4. Briefly the facts are that Pir Shujaat Hasnain Qureshi appellant was a contesting candidate to the National Assembly from Constituency No.NA‑113 Multan‑III which was held on 25th February, 1985. He obtained 49,357 votes whereas the returned candidate namely Pir Mohammad Sanaullah Bodla secured 60,874 votes. Thus, Pir Mohammad Sanaullah Bodla was declared as elected to the National Assembly seat from NA‑113 Multan‑III, and Pir Shujaat Hasnain Qureshi appellant lost the election.

5. On the resignation of Makhdum Sajjad Hussain Qureshi, the general seat of Senate fell vacant on 16th January, 1986. Consequently notifications were issued by the Election Commission under section 77 of the Senate (Election) Act of 1975 read with Article 224(5) of the Constitution of Pakistan calling upon Members of the Punjab Assembly to elect a member for the general seat of the Senate. Under these notifications Pir Shujaat Hasnain Qureshi appellant as well as six other contestants namely Alhaj Raees Ahmad Qureshi, Begum Dr. Farida Afzal Rana, Dr. Mushtaq Ahmad Choudhry, Sahibzada Furqan Syed, Mian Muhammad Farooq and Mir Anwar Ali (impleaded as respondents in Civil Appeal No.141 of 1987) filed their nomination papers on 20th January, 1986. Scrutiny took place on 21st January, 1986 and polling to the Bye‑Election of the Senate was held on 27th January, 1986. As a result Pir Shujaat Hasnain Qureshi appellant secured 202 votes, Alhaj Raees Ahmad Qureshi respondent secured 12 votes which was the next highest number of votes, Begum Dr. Farida Afzal Rana and Dr.Mushtaq Ahmad Choudhry respondents secured four votes each, Sahibzada Furqan Syed respondent did not secure any vote at all whereas Mian Mohammad Farooq and Mir Anwar Ali respondents secured one vote each. Thus Pir Shujaat Hasnain Qureshi appellant was declared to have been elected on 27th January, 1986 and the result of the election was notified in the Gazette of Pakistan on 28th January, 1986.

6. On 9th February, 1986 Alhaj Raees Ahmad Qureshi respondent filed an election petition for declaring the election of Pir Shujaat Hasnain Qureshi appellant to be void on the ground that he was a disqualified candidate under Article 10 (4) of the Houses of Parliament and Provincial Assemblies (Elections) Order 1977 (P.O.V of 1977), read with Article 63 (1) (p) of the Constitution of Pakistan. This petition was heard by the Election Tribunal (Senate) Punjab and vide judgment dated 9th June, 1987 Pir Shujaat Hasnain Qureshi appellant was declared as disqualified to continue as Senator, and it was further ordered that re‑election should be held in the case. Hence these appeals.

7. In Civil Appeal No.141 of 1987 Mr. Khalid Farooq Qureshi learned counsel for Pir Shujaat Hasnain Qureshi appellant argued that under the impugned judgment the appellant was disqualified ‑to be a candidate on the nomination day i.e. on 20th January, 1986 in respect of election to the Senate which, according to him, could not be considered to be an election held within the pale of the President's Order No. V of 1977 (P.O.V of 1977) but was in fact an election held under the Constitution of Pakistan. It was then submitted that the disqualification under Article 10 (4) of P.O.V of 1977 was applicable to the case of first election of the Senate and it could not be attached, as in the present case, to a bye‑election of the Senate or any election to be held after the first election. It was further submitted that P.0. V of 1977 was an existing law only for the purposes of the elections held thereunder i.e. elections which were held during the subsistence of Martial Law and that therefore the aforesaid disqualification could not be given an extended meaning so as to be applicable also to the case of elections held after the lifting of the Martial Law. According to the learned counsel for the appellant if this was so, then a person, who had lost election to the National Assembly held under P.O. V of 1977 would be permanently disqualified to contest any future election. In other words the contention of Mr. Khalid Farooq Qureshi, Advocate was that the disqualification under Article 10 (4) of P.O. V of 1977 was available or applicable only when the elections were held under the said President's Order as it visualized only one general election to be held under it. But after the revival of the Constitution of Pakistan the situation changed as any‑ election to the Senate could only be held under the Senate (Election) Act 1975 and consequently only those disqualifications became applicable for a contestant which had been incorporated in the Constitution and the Senate (Election) Act, 1975. According to him if the aforesaid disqualification was to be made applicable to the elections which were held under the Constitution, then it would become a permanent disqualification and without it being based on a fair classification, it would be violative of Article 25 of the Constitution which provides for the equality of citizens.

8. Learned counsel for the appellant had advanced these arguments alongwith numerous others also before the Election Tribunal which were carefully attended to and found to be without any force.

9. The relevant statutory provisions applicable to the present case are as follows: Article 63 (1) of the Constitution of Pakistan enumerates the disqualifications for membership of Majlis‑e‑Shoora

10. (Parliamant). The portion relevant for our purpose is Article 63 (1) (p) which reads as follows:

11. "63 (1) A person shall be disqualified from being elected or chosen as, and from being, a Member of the Majlis‑e‑Shoora (Parliament), if‑

(p) he is for the time being disqualified from being elected or chosen as a member of the Majlis‑e‑Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force."

12. Article 10 of the the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 constitutes part of the President's (Post Proclamation) Order No.V of 1977. Thereafter, vide President's Order No.17 of 1985 (P.O.17 of 1985) published in the Gazette of Pakistan (Extraordinary) dated 7th March, 1985 it was amended by the addition of clause (4) after clause (3). The relevant provision is as follows:

13. "Qualifications and disqualifications for membership of

14. Parliament:

(1) ...........................................................

(3) ..........................................................

(4) A person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a Provincial Assembly at the elections held under this Order, he has not been elected to such Assembly."

15. Thus it is evident that according to Article 63 (1) (p) of the Constitution a person shall be disqualified from being elected or chosen as, and from being a member of Parliament (which consists of the National Assembly and the Senate) or of a Provincial Assembly if he is disqualified under any law for the time being in force. Next. Article 10 (4) of P.O. V of 1977 as amended provides that any person shall , be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a Provincial Assembly at the A elections held under this Order, he has not been elected to such Assembly. The intention of the law‑maker can indeed be gathered from a bare reading of the above provisions and that is to disqualify such a candidate to be elected or chosen as a member of the Senate who in the general. elections to the National Assembly or a Provincial Assembly held under the said Order did not secure highest number of votes polled in the constituency from which he contested and could not be elected.

16. P.O. V of 1977 has been amended from time to time. It was inl force before the Constitution was revived and by virtue of Article

17. 270‑A as well as sub‑Article (3) thereof it continues to be in force B until it is altered, repealed or amended by the competent authority.

18. The present appellant contested in the National Assembly Elections held under P.O. V of 1977 in 1985 and lost. Thereafter, under section 77 of the Senate (Election) Act 1975 read with Article 224 (5) of the Constitution, bye‑election to the general seat of the Senate vacated by Makhdum Sajjad Hussain Qureshi was held in 1986. P. O. V of 1977 was existing law when the said bye‑election was held. Consequently the words used in clause (p) of Article 63 (1) of the Constitution to the effect "for the time being in force" meant the time when P.O. V of 1977 was in force and the amendment introduced thereto or any other law in force for the general election would affect the result so far as the appellant was concerned.

19. In the present case it is an admitted fact that the appellant had contested the general election to the National Assembly held on 28th March, 1985 and lost the same. Sub‑Article (4) of Article 10 was incorporated in P.Q. V of 1977 on 7th March, 1985. Thus, it is evident that the appellant had become ineligible to contest election/ bye‑election to a general seat of the Senate from the Province of Punjab held on 27th January, 1986. As he was ineligible to participate in a contest for a general seat to the Senate, then even if he was elected, he was correctly held to be disqualified to continue as Senator by the Election Tribunal.

20. We may observe that the submission of the appellant's counsel that the above interpretation would debar the appellant from contesting an election to the Senate for ever is untenable. It is only candidates who contested elections to the National Assembly or the Provincial lD Assembly under P.O. V of 1977 and were unsuccessful who stood debarred. The next general elections are admittedly to be held under the provisions of the Constitution, when Article 10 (4) of P.O. V of 1977 will no longer be in the field.

21. In Civil Appeal No.199‑R of 1987 the main prayer of Alhaj Raees Ahmad Qureshi appellant is that he be declared as elected to the general seat of the Senate as he had obtained the next highest number of votes. It was submitted by Mr. Abid Hasan Minto, learned counsel for the appellant that on the facts and circumstances of the present case the bye‑election had been materially affected due to the disqualification of the returned candidate namely Pir Shujaat Hasnain Qureshi respondent herein and that in stead of directing re‑election for the bye‑election, the Election Tribunal should have held the present appellant as the returned candidate as he had obtained the next highest number of votes. It may be pointed out that the present appellant obtained 12 votes as against 202 cast in favour of Pir Shujaat Hasnain Qureshi respondent. The finding of the Election Tribunal is that at the time of the filing of the nomination papers and their scrutiny no objection had been raised by the appellant or any other contesting candidate respecting the nomination papers filed by Pir Shujaat Hasnain Qureshi respondent and that this indicated that his disqualification was not notorious so as to consider the votes cast in his favour to be thrown away and to give the seat to the candidate with the next highest number of votes. The universally accepted principle is that the votes cast for a candidate who is disqualified should not be deemed to have been thrown away unless the disqualification was so notorious that the electors could be presumed E to be aware of it. In other words it must be clearly established at the time of polls that there was wilful perverseness on the part of the electors voting for the disqualified person. If the disqualification was not notorious, then it would depend on circumstances of each case whether even though the candidate was to be unseated by reason of his disqualification, the votes cast in his favour should not be thrown away, but the seat be given to the candidate with the next highest number of votes. Mr. Abid Hasan Minto, Advocate placed reliance on 1986 SCMR 1701 (Abdul Ghani v. Mumtaz Hussain). In that case a candidate had been disqualified but it was held that the Election Tribunal was justified in considering the votes cast in his favour as having been thrown away and therefore the respondent who had secured next highest number of votes was rightly declared as successful. But the facts of that case are distinguishable. In the instant case the finding of the Election Tribunal is that there was no; evidence before it that any candidate including the present appellant' sought to campaign on the basis that Pir Shujaat Hasnain Qureshil respondent was not qualified to contest the election and that therefore i in the circumstances it was impossible to hold that his disqualification was notorious. In that view of the matter giving the seat to the present appellant would have in fact amounted to disenfrenchisement of the voters. Thus, in our view the Election Tribunal was justified; in rejecting the prayer of the appellant by not declaring him to be' elected, but instead ordering re‑election in this case.

22. In the light of the above discussion, we are of the considered opinion that the impugned judgment of the Election Tribunal (Senate) Punjab is unassailable, and it is accordingly maintained.

23. The result is that both the appeals are dismissed, but in the circumstances of the case there would be no order as to costs.

24. M.B.A. /S‑93/S Appeal dismissed.