MUHAMMAD YOUSAF Versus M. IRSHAD SIPRA

This is an appeal by a. candidate for election to the Punjab Provincial Assembly Constituency PP-102, Sialkot, against the impugned order of the Returning Officer accepting the nomination paper of respondent No. 2 who was convicted on 23-12-1984 for an offence under section 120-B of Pakistan Penal Code and sentenced to life imprisonment and is presently confined serving the sentence in jail.

2. The facts in brief are that appellant and respondent No.2 filed nomination papers for contesting election to the Punjab Provincial Assembly from constituency No.PP-102. The Returning Officer, respondent No.1 held scrutiny of the nomination papers on 19-10-1988 under section 14 of Representation of the People Act, 1976. The appellant objected to the candidature of respondent No.2 on the ground that he was ineligible from being elected or chosen to the 'Provincial Assembly in view of his conviction for an offence under section 120-B of the Pakistan Penal Code and sentence of imprisonment for life by Special Military Court No.60. Lahore on 23-12-1984. The appellant produced before respondent No.1 a certificate from Superintendent, Central Jail, Lahore, certifying the conviction and sentence of respondent No.2 as mentioned above and also that he was sentenced to undergo one year R.I. on 13-11-1984 by Summary Military Court No.2, Lahore and that said respondent Tallat Jaffari was confined in Central Jail at Kot Lakhpat undergoing his period of imprisonment.

3. The learned Returning Officer vide impugned order of 19th October, 1988 noticed the appellant's objection that since respondent. No.2 has been sentenced under section 120-B , therefore, he' is not qualified for contesting the election. Certified copy issued by the Superintendent Jail was taken note of but respondent No.l then went on to hold that conviction under section 120-B was not one for an offence involving moral turpitude, hence it did not render respondent No.2 ineligible for election. The objection was, therefore, overruled and nomination form of respondent No.2 was accepted.

4. On presentation of this appeal, it was admitted to a regular hearing with notice to the parties. The learned Advocate-General. Punjab and the learned Legal Adviser to respondent No.3, Election Commission of Pakistan, Ch. Mushtaq Ahmed, Advocate were asked to appear. Respondent No.l was served personally in Central Jail at Kot Lakhpat, Lahore and also through his authorised agent apart from the statutory mode .provided by section 14 (7) of the Representation of the People Act,. 1976.

5. The learned counsel for the appellant Ch. Riyasat Ali attacked the impugned order of the learned Returning Officer on several legal grounds.

The chief ground urged by the appellant's counsel is based on the plea that the Returning Officer misread and misapplied the law and on the basis of wrong assumptions has rendered a decision which suffers from a vitiative infirmity. The precise argument of. the learned counsel is based on the provisions of Article 62 and in particular clause (p) of sub-Article (1) of Article 63 of the Constitution of Islamic Republic of Pakistan read with section 78 (a) of the Senate (Election) Act, 1975. This section lays down disqualification for a person from being elected as, and from being a member of the Senate, if he has been on conviction for any offence, sentenced to imprisonment for a term of not less than two years unless a period of five years has elapsed since his release. It was further elaborated by the learned counsel that the Articles 62 and 63 of the Constitution deal with qualifications and disqualifications for membership of Majlis-e-Shoora (Parliament) which consists of two Houses to be known respectively as the National Assembly and the Senate. He further submitted that it followed, therefore, that qualifications /disqualifications incorporated in Articles 62 and 63 or those provided by any law for the time being in force within the contemplation of Article 63 (1) (p) would equally apply in respect,of election to Majlis-i-Shoora (Parliament) or a Provincial Assembly. According to the submission of the learned counsel for the appellant, the Returning Officer had completely ignored from consideration section 78 of the Senate (Election) Act which did not require conviction for an offence involving moral turpitude and in so doing he patently misread and misapplied the law in accepting the nomination paper of respondent No.2.

6. The second submission of the learned counsel for the appellant was based on Article 62 (g) of the Constitution that respondent No.2 has been convicted and sentenced to life imprisonment under section 120-B, PPC which involves moral turpitude. The third submission of the learned counsel for the appellant is that respondent No. 2 was undergoing sentence of 25 years term whereas the term of the Provincial Assembly is only five years, thus respondent No.2 being under a disability on account of confinement in jail will not be able to attend to his functions and duties in the Assembly. Therefore, to permit him to be a candidate for election or to become a member would be opposed to the public policy. The last ground raised by the learned counsel for the appellant is that the Returning Officer as well as the Appellate Tribunal were bound to reject the nomination paper of a person who was on the nomination day not qualified for an election as was evident from the scheme of section 14 of the Representation of the People Act. It was submitted that Legislature in its wisdom has left no discretion with the statutory functionaries in this behalf at the time of scrutiny and hearing of appeal. Learned counsel argued that ignoring a disqualification despite being cognizant of it or leaving it to be decided after the election by an Election Tribunal is not proper because this would amount to waste of public time and money and also disfranchising the voters under doctrine of thrown away votes on account of notoriety of conviction and sentence of respondent No.2. Learned counsel for the appellant in support of his grounds placed reliance on Muhammad Khan v. Muhammad Sarfraz Khan etc. (1980 CLC 1) as approved in the case of Umar Draz Cheema v. Noor Muhammad and others (1980 S C M R 156).

7. The learned Legal Adviser for the Election Commission of Pakistan, Ch. Mushtaq Ahmad Khan, Advocate submitted that Article 50 read with Article 63 (1) (p), Articles 113 and 127 of the Constitution would also disqualify a person from being elected to the Parliament or a Provincial Assembly, as the case may be, if it is so provided by any law for the time being in force. According to him, section 78 (a) of the Senate (Election) Act being a law for the time being in force would disqualify a person from being elected as Member of the Senate and this would' also entail disqualification from being elected to the National Assembly or a Provincial Assembly. The learned Legal Adviser .further submitted that acceptance of the nomination paper by the Returning Officer was illegal as he had failed to apply his mind to the provisions of Articles 62 and 63 and other relevant provisions of the Constitution and those of the Senate (Election) Act, 1975. He further, submitted that it was the duty of the Returning Officer to correctly apply the law and his failure to do so calls for interference by the Appellate Tribunal in exercise of its statutory jurisdiction. He further argued that the ground given by the Returning Officer for not rejecting the nomination paper that the offence which led to the conviction of respondent No.2 did not fall within the definition of moral turpitude to the extent it goes appears to be correct for want of evidence as held in the case of Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others (1986 C L C 1464) . According to the learned counsel the Returning Officer was not conscious of the nature of his jurisdiction and overlooked the provisions of Article 63 (1) (p) of the Constitution and those of the Senate (Election) Act, 1975, which amounted to a patent illegality which rendered his impugned order as void. He submitted that if the judgment of the Special Military Court would have been available then the offence may well have fallen within the ambit of moral turpitude when judged in the light of the provisions of Article 2-A of the Constitution. Since there was no evidence on record to show as to on what precise grounds respondent No.2 was convicted, it could not be said that he was convicted for an offence involving moral turpitude.

8. Mian Abdus Sattar Najum, learned counsel for respondent No.2 argued that question primarily involved is that of interpretation of Articles 62 and 63 of the Constitution, section 99 of the Representation of the People Act and section 78 of the Senate (Election) Act, 1975. According to him Articles 62 and 63 provide exceptions for convicts who may contest election. Article 63 (h) speaks of conviction for an offence involving floral turpitude. He relied upon the dictum in the case of Abdul Rashid Mughal v. Muhammad Shabbir Abbasi (1984 SCMR .1172) for the proposition that certificate of jail authorities of a mere conviction by itself furnished no proof upon which a conclusion could be drawn that a person was held guilty and convicted for an offence involving moral turpitude.

9. The learned counsel next referred to section 99 of the Representation of the People Act, 1976, which in relevant respect is similarly worded as Articles 62 and 63 of the Constitution. He submitted that these provisions being penal in nature are to be strictly construed. He argued that section 99 of the Representation of the People Act gives qualifications and disqualifications for being elected or chosen as and from being a member of the Parliament. As this Act was enacted and enforced later than the Senate (Election) Act, 1975, its provisions should be treated as an exception to the earlier statute. The learned counsel submitted that Constitution has to be read as a whole and its provisions construed harmoniously to avoid a seeming conflict and redundancy is not to be attributed to any of its parts or provisions. He further submitted that while enacting the Senate (Election) Act, 1975, the Legislature thought is fit that a person convicted for an offence and sentenced for a term of not less than two years though not involving moral turpitude should not be elected as a Senator, unless a period of five years had elapsed from his release. However, this was not so in respect of the Representation of the People Act, 1976, which ' was a later statute. The- learned counsel for respondent No.2 further contended that different standards for qualification and disqualification for election as a member of the Senate and to the National Assembly were consciously introduced. The qualification of the age for the Senate is 35 years. Any member of the National Assembly can be a Prime Minister regardless of age. There is no age limit provided for the election of the Prime Minister. In case of Senate, simple conviction not involving moral turpitude is a disqualification but in the case of National Assembly, it must be a conviction involving moral turpitude. The Legislature has reaffirmed this position by introducing the amendment in section 99 of the Representation of the People Act, by again laying down that the member of a National Assembly or a Provincial Assembly will be disqualified only on the basis of conviction, if it involves moral turpitude. According to the learned counsel, the expression 'any law' means the law in case of a candidate to the Senate, the Senate (Election) Act and in the case of National Assembly, the Representation of the People Act and this is how one can give meaning to the words of the Constitution and of the two Acts. According to the learned counsel for respondent No.2 it is appellant's burden to prove whether the crime committed by respondent No.2 involves moral turpitude. No document is placed on record except a certificate from jail authorities showing that respondent No. 2, in fact, is undergoing sentence awarded under section 120-B, P.P.C. So far as the factum of conviction and awarding of sentence of life imprisonment is concerned, it was not disputed by the learned counsel for respondent No.2.

10. The learned counsel for respondent No.2 more than once emphasised that his client was not aware of the nature of the charges for conviction and the relevant information was not supplied to him. In these circumstances, the Deputy Superintendent, Central Jail, Lahore, was sent for to produce the Jail record relating to respondent No.2. He appeared and produced the Jail record whose copies certified by him have been placed on record. The originals were seen and returned. He also proved the certificate dated 18-10-1988. which was issued by him. It stands revealed that the Special Military Court had awarded death penalty to respondent No.2 which was confirmed by Martial Law Administrator, Zone 'A' .but he commuted the sentence of death to imprisonment for life. There is no controversy between the parties regarding the conviction and sentence of respondent No.2 which is an admitted fact.

11. I have heard the learned counsel to their heart's content and record has been perused.

12. After careful consideration, I have reached the conclusion that the second ground raised by the appellant regarding conviction being construed for an offence involving moral turpitude must fail. The matter is clinched by the decision of the Supreme Court in the cited precedent in the case of Abdul Rashid Mughal. The plea is accordingly not sustained.

13. I would now take up the first and the principal ground raised by the learned counsel for the appellant pressing into service the provisions of Article 63 (1) (p) of the Constitution which reads:-

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

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

It is patently plain on a careful reading of the above provisions that the scheme of the Constitution is that apart from the qualifications/ disqualifications enumerated in Articles 62 and 63 of the Constitution, it also recognises the disqualifications for the time being imposed under any law for the time being in force from being elected or chosen to the Majlis-i-Shoora (Parliament) or a Provincial Assembly. This view finds support from the decision of the Supreme Court in re: Shujaat Hasnain Qureshi v. Raees Ahmed Qureshi (P L D 1988 SC 118) as would be evident from the following enunciation of law:-

"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-i- Shoora (Parliament). The portion relevant for our purpose is Article 63 (1) (p) which reads as follows:-

'63 (1)-- A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-i-Shoora (Parliament), if- .............................................

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

Article 10 of 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:

"Qualifications and disqualifications for membership of Parliament. --

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

(2) ................................... ................

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

(4) A person shall be disqualified from being elected 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."

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.0.5 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 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 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 under the said Order did not secure highest number of votes polled in the constituency from which he contested and could not be elected".

In the case under disposal, instead of the provisions of the P.O. 5 of 1977, the provisions of section 78 (a) of the Senate (Election) Act are being pressed into service which reads as under:

"78. Disqualification .-- A person shall be disqualified from being elected as, and from being, a member of the Senate, if-

(a) he has been, on conviction for any offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years had elapsed since his release; or."

It is to be noticed that under the above provision of law a person who has been convicted and sentenced for any offence for a term of not less than two years shall be disqualified from being elected as, and from being a member of the Senate unless a period of five years has elapsed since his release. It may be mentioned here that the 1962 Constitution contained a somewhat parallel provision in the form of Article 103 (2) (e) of the defunct Constitution which reads:

"(d) he is otherwise disqualified from being a member of that Assembly by this Constitution or by or under any law."

The disqualification contained in section 78 (a) will have effect by operation of law where the requirements for its application are admitted or shown to have been fulfilled. A reference to the decision of the Supreme Court in the case of Umar Draz Cheema v. Nazar Muhammad (1980 S.C.M.R. 156) would be most apt since it deals with the effect of provisions which are in pari materia with the provisions of Article 63 (1) (p) of the Constitution. In this precedent case, the controversy centred around clause (f) of section 21 of the Punjab Local Government Ordinance, 1979, read with section 4 of the said Ordinance. Section 21 reads as under:

"21. Disqualifications of candidates and members .-

A person shall be disqualified to be a candidate or a member of a local council--

(a) to (e) ................

(f) if he, for the time being, is disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force."

The learned Supreme Court was pleased to hold:-

"According to its tenor it tends to bring the candidates for the local councils on the same footings as the candidates for the membership of the Parliament or the Provincial Assemblies by subjecting to the same disqualifications in addition to those enumerated in section 21. The word 'disqualified' used in clause (f) has no particular implication but that it signifies the disability according to the particular language of the provisions of other statutes. This becomes obvious if the word 'disqualified' is read in conjunction with the words 'under any law for the time being in force'. The High Court was, therefore, correct' in holding that the implication of this word was not that, that a candidate should have been disqualified under any law for the time being in force by any specific order. Further, as this clause incorporates the disqualifications under other laws and therefore the High Court was right in holding that such disqualifications being integral part of the Ordinance, full effect should be given to them subject of course to the limitation that they should not be inconsistent with the disqualifications enumerated in section 21. Again we fail to see how Article 1 (2) and (3) of President's Order No. 5 could be taken into consideration for holding that the disqualifi cations in Article 10 could not be read into clause (f) of section 21 of the Ordinance when clause (f) itself incorporates disqualifications as provided by this Article and the other laws. The principle of interpretation is that what is enacted has to be given full effect and extraneous considerations cannot be employed to make it redundant or to detract it from the meaning which it conveys. Therefore, it would not be proper to read the words "by a specific order" in clause (f) for the Courts cannot provide the deficiency which can only be done by the legislature. Accordingly, the order of the High Court is unexceptionable."

13. In the present case, if I am to accept the contention of learned counsel for respondent No.2 then I would have to deviate from the salutory principle governing the interpretation of the statutes that meaning must be given to every word of the Constitution and the Courts ought to avoid an interpretation which will have the effect of rendering its provisions surplusage or nugatory. The provisions of clause (p) of sub-Article (1) of Article 63, therefore have to be given the fullest effect. In such a situation, therefore, a person who stands disqualified for election to one of the Houses of the Majlis-i-Shoora (Parliament) would automatically stand disqualified from being elected or chosen as a member or from being a member of the National Assembly or a Provincial Assembly. This is so by virtue of the fact that both the Articles 62 and 63 by their opening words provide for qualifications and disqualifications from being elected or chosen or from being a member of a Majlis-i-Shoora (Parliament). Article 63 (1) (p) is an integral part of the Constitution. Therefore, any dis qualification by virtue of this Constitutional provision must also have its fullest effect. As observed by the Supreme Court in the case of Shujaat Husnain Qureshi, Parliament consists of the National Assembly and the Senate. The same is the position which emerges by adverting to the provisions of Article 50 of the Constitution. Then comes Article 113 read with Article 127 of the Constitution. The former Article of the Constitution prescribes that the qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial assembly as if reference therein to "National Assembly" were a reference to a "Provincial Assembly". Then by virtue of Article 127, the dis qualifications laid down in Article 63 of the Constitution would also apply to and in relation to a Provincial Assembly or a committee or members thereof. Clause (p) of sub-Article (1) of Article 63 is very much, as already observed, an integral part of the Constitutional provisions. Therefore it follows as a natural corollary that when a person is disqualified from being elected to Majlis-i-Shoora (Parliament) he would also stand disqualified from being elected to a Provincial Assembly. It will be pertinent to point out that apart from these provisions contained in Election Laws, the Legislature in its wisdom has also laid down disqualifications from being elected or chosen or from being a member of the Parliament or a Provincial Assembly by virtue of the provisions of section 33 of the Land Reforms Act, 1977. The relevant portion of the law is reproduced as under:-

"33. Offences and penalties .- (1) Whoever-

(a) to (f) ...............................................

(2) A person convicted of any offence under subsection (1) shall be disqualified from being a member of the Parliament or a Provincial Assembly or any local elective body and from being elected and chosen as such a member for a period of five years from the date of such conviction."

This provision was pointed out to the learned counsel for respondent No.2 and he was asked to comment whether this could be said to be ultra vires of the Constitution or in conflict with any other law of the land for the time being in force. He was unable to make any submission contrary to the requirements of Article 63 (1) (p) which would govern such a case under the aforesaid law.

14. Ch. Mushtaq Ahmed, Advocate, learned Legal Adviser for the Election Commission of Pakistan has drawn my attention to the case of Sardar Asseff Ahmed All v. Mr. Muhammad Khan Junejo and others (P.L.D. 1986 Lahore 310) which was a case decided by a Division Bench of which I happened to be one of the members. In this precedent case the scope of Article 63 (1) (p) was examined and it was held in para. 19 of the decision as follows:

"We would like to now deal with another argument of learned counsel for the petitioner in so far as it is advanced on the strength of Article 63 (1) (p) of the Constitution of the Islamic Republic of Pakistan inasmuch as the learned counsel was insistent upon making us believe that the disqualification provided by sub-clause (7-a) of Article 10 (2) (b) of Presidental Order No-5 of 1977 had become a constitutional disqualification. The scheme of Article 63 of the Constitution shows that it enumerates two types of disqualifications. Sub clauses (a) to (n) of clause (1) of Article 63 specify the disqualifications from being elected or chosen as, or from being, a member of the Majlis-i-Shoora. However, sub-clause (p) of the same Article appears to be designed to give recognition to the disqualification from which a person may suffer from being elected or chosen as member of the Majlis-i-Shoora (Parliament or of a Provincial Assembly under any law for the time being in force. A comparison of sub-clause (p) with the preceding clauses of the same Article clearly brings out the difference in the import of these provisions under examination. The language of sub-clause (p) of Article 63 (1) cannot reasonably be stretched so as to give to the disqualifications under a statutory law the status of disqualification specified by the Constitution itself. The disqualifications contemplated by sub-clause (p) are those from which a person suffers under the law of the land and the disappearance of the disqualification would also depend on the state of the law for the time being in force and no Constitutional amendment in that behalf need to be made. In other cases, where Constitution itself lays down a disqualification, no sub-constitutional law can wipe it out. We would thus repel the argument as misconceived."

I must frankly state that by precedent, I am bound by the aforesaid decision of the Division Bench. I am also bound by the dicta of the Supreme Court in the aforementioned cited precedents by virtue of Article 109 of the Constitution.

15. The position of the Returning Officer was no different and he was obliged to read the provisions of Articles 62 and 63 of the constitution with utmost care and to scan the laws for the time being in force which lay down disqualifications for being elected or being member of a Parliament or a Provincial Assembly. The learned Returning officer, respondent No.l, confined himself merely to the question of moral turpitude and thus ignored from consideration the provisions of law and the binding precedents and thus fell into a serious Legal error, which brought about a vitiative infirmity in his impugned order. I feel that it would be of use to construe Article 63 (1) (p) from another angle. It speaks of any law for the time being in force. The word 'any' came up for consideration before the Supreme Court of Pakistan in the case of Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner (P L D 1977 SC 164), the Supreme court was pleased to hold as under:-

"As rightly held by the Full Bench on the basis of the Queen v. Rowlands and others (1880) Q.B.D. 5308 and Duck v. Bates (1884) 12 Q.B.D. 79) the word "any" is an expression of utmost generality removing all limitations or qualifications."

Reference may also be made to the case of Pakistan Tanneries Ltd. v. Sardar Hadayat Ullah Mokal and 5 others (P.L.D 1972 Lah. 880) and, in particular, observations occurring at page 896 of the report which are as under:-

"The word 'any also shows that in this respect the word 'allotment' is not confined merely to allotments as defined in this Act, but is wider in scope to embrace all and any types of allotments or leases etc. It was laid down in Wooler v. North Eastern Breweries (1910) 1 KB 247 that 'any' is a word which excludes limitations or qualifications. It connotes wide generality. The same was the view expressed by Fry L.J. in Duck v. Bates (1883-4) 12 Q.B.D. 79)."

16. Seen in this light of this interpretation, the argument of the learned counsel for respondent No.2 that the matter be confined to the provisions of the Representation of the People Act alone in order to find out qualifications or disqualifications of persons from being elected or chosen to Majlis-i-Shoora (Parliament) or a Provincial Assembly is not sustainable. The Court must look to the entire law for the time being in force and to apply the correct law. The Supreme Court has said so in Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner etc. (1972 S.C.M.R. 359). The following pertinent passage from the judgment is quoted with advantage:-

"Learned counsel for the respondent No.2 next contended that this was a new point which had not been taken in any of the Courts below and should not be allowed to be raised at this stage. It is true that none of the Courts below, at any of the several stages when this matter came up before them, noticed this point, although the original order of allotment in favour of the respondent clearly stated that the temporary allotment was being made under Clause 14 (b) of Appendix 11 and that could only have had reference to the Rehabilitation Scheme applicable to Sind, as the main Rehabilitation Scheme under the Pakistan Rehabilitation Act, 1956, did not come into being until the 24th of March, 1956. It was the duty of the Courts below to have noticed this and then to have applied the proper law. Whether a litigant draws the attention of the Court to it or not, it is the duty of the Court to apply the correct law. Reference to these provisions cannot, therefore be shut out."

17. It remains to deal with the other argument of the learned counsel for the appellant that respondent No.2 having been convicted and sentenced for a term of imprisonment for life (25 years) would be under a disability to perform his functions as a member of the Provincial Assembly and thus it will be opposed to public policy to allow him to contest the election may be a well founded argument, but this certainly is outside the contemplation of Article 63 (1) (p) of the Constitution and therefore I am not inclined to enter Cain or sustain it.

18. A few words need be said about the scheme of Articles 62 and 63 of the Constitution. A careful reading of the two Articles will bring out that the words 'qualifications and disqualifications' have been used as interchangeable terms. This is so for the reason that even the qualifications have been provided in negative terms. I am Constitution fortified in my view on a reference to proviso f Article 62 of the constitution which reads as follows:-

"Provided that the disqualification specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation; and (i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament),"

This is so despite the fact that Article 62 otherwise speaks of qualifications for being a member of Majlis-e-Shoora (Parliament) and lays down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless .........

19. In essence the language of Article 63 (1) is rather similar i where it lays down that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-i-Shoora (Parliament) if, the conditions prescribed in various clauses stand attracted to a given case.

20. The matter may also be examined from yet another angle. it will be noticed that the pivotal words of clause (i) of Article 62 of the Constitution read as under:-

"62. A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-

(i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament)."

Therefore, in my humble view, apart from the provisions of Article 63 (1) (p) in a given situation, the same results may flow from the application of aforementioned clause (i) of Article 62 in the matter of qualifications or disqualifications from being chosen or elected as a member of the Majlis-i-Shoora (Parliament) as prescribed by and Act of the Parliament.

21. The provisions of section 78 (1) of the Senate (Election) Act are in the following terms:

"78. Disqualification .-- A person shall be disqualified from being elected as, and from being, a member of the Senate, if--

(a) he has been, on conviction for any offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release" or;

A clear import of this provision is that a person on conviction for any offence and awarded sentence of imprisonment for a term of not less than two years shall stand disqualified from being elected or chosen or from being a member of the Senate unless the period specified therein has elapsed since- his release. The word 'any' prefixed to the word 'offence' is of great significance. As already noticed above, the word 'any' being of widest amplitude would remove all limitations and a person on conviction for any offence which may not involve moral turpitude shall stand disqualified by the rigours of section 78 (a) of the Senate (Election) Act, 1975.

22. I may now deal with the submission of the learned counsel for respondent NO-2 that I should leave the question of qualification or disqualification of respondent No.2 to be challenged by way of Election Petition and to allow said respondent to go to polls so that the electorate could elect the candidate of their choice. I am sorry to observe that in order to sustain this argument I am not inclined to do violence to the provisions of section 14 of the Representation of the People Act. The process of scrutiny is designed to preclude persons from entering the arena who are not. qualified for being elected or chosen or suffer from disqualification to the same effect in respect of either Parliament or a Provincial Assembly. The purpose of this provision emerges clear on a mere perusal thereof. It is designed to be a process of filtration to stop, as far as possible, ineligible persons from managing to get themselves elected to the Legislature and a right has been conferred upon the other candidates to object to the disqualifications of a rival candidate. However, I think the view of learned Legal Adviser for Election Commission of Pakistan was much to commend itself that to allow knowingly an ineligible/not qualified person to participate in the election would amount to disfranchising a large number of voters in case of a notoriety of a disqualification and would be a wasteful exercise involving public expense and time.

23. Apart from this aspect of the matter, section 14 creates an obligation for the Returning Officer to examine the nomination papers in the presence of the persons attending the scrutiny and decide any objection raised by the such person to any nomination. The provision of appeal to the Commission or to a Judge of the High Court nominated in terms of--section 14 (5) of the Representation of the People Act speaks volumes about the importance which the Legislature has attached to the process of this scrutiny for acceptance or rejection of the nomination papers of a candidate for election to Parliament or a Provincial Assembly.

24. There was an oblique reference made by learned counsel for respondent No.2 to the effect that respondent No.2 was filing a writ petition to challenge the proceedings relating to the trial, conviction and sentence of life imprisonment by Special Military Court and conviction and sentence to one year R.I. by a Summary Military Court and thus there was a possibility that he may be able to succeed in having the conviction set aside. I am afraid this argument of the learned counsel has little merit for the reason that for the purpose of rejection or acceptance of a nomination paper of a candidate, the qualifications or disqualifications to be kept in view are those from which he suffers at the time of filing of the nomination paper and not the future events. It may be pointed out that section 78 (a) of the Senate (Election) Act speaks of conviction for any offence and sentence of imprisonment for a term of not less than two years unless a period of five years has elapsed since his release. The disqualification, therefore, will continue to attach to respondent No.2 for a period of five years even if and when he is released. Attention may also be drawn to clause (m) of Article 63 (1) of the Constitution which reads as under:-

(m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or."

It is being pointed out to show that there is no omnibus rule of disqualifications spelt out by the statute or by the laws for the time being in force in relation to the convicts, who were convicted whether for an offence involving moral turpitude or not. In some cases, the period of disqualification will continue even after the release and in other cases the period of conviction is the starting point and expiry of five years is the terminus quo. As against this, in clause (g) of Article 62, a mere conviction for a crime involving moral turpitude or for giving false evidence without anything more amounts to disqualifi cation of a person from being elected or chosen as a member of the Parliament. It does not speak either of a starting point or a termination point if a person has been convicted for a crime involving moral turpitude or for giving false evidence. However, as I have already observed above, the provisions of the Constitution have to be harmonised and Court would not readily lean in favour of a seeming conflict. There is also a distinction in the language of Articles 62 and 63. It may be mentioned in the passing that Article 62 speaks of I a person not being qualified to be elected or chosen as a member h hereas Article 63 covers a person disqualified for being elected or chosen and also from being a member of the Parliament. In other words, the disqualification is to continue to attach to a person even if he manages to enter the Parliament despite being a disqualified person.

25. Apart from other aspects by virtue of Article 62 (f) of the Constitution a person would not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous and non-profligate and honest and ameen. Since the word 'righteous' has not been defined, it is to be given its dictionary meaning. According to the Concise Oxford Dictionary, Seventh Edn. the word 'righteous' means: "morally right, just, upright, virtuous, law-abiding". The presumption of a conviction stands so long as it lasts and presently respondent No.2 who is already undergoing a sentence of life imprisonment, cannot be said to be a righteous person. that is, law-abiding, within the meaning of word 'righteous' as given above.

26. It may be mentioned here that this appeal could have been disposed of even on the short ground for the reason that the Election Commissioner is a party to the appeal and it did not support the order of its own functionary, namely the Returning Officer, respondent No. 1. However, since the interpretation of Constitution and the law was involved the matter has been examined in depth and decided.

27. For all these reasons stated above, it is held that respondent No.2 at the time of his nomination was not qualified by virtue of his conviction to imprisonment for life on a combined reading of Articles 50, 62, 63, 113 and 127 of the Constitution of Islamic Republic of Pakistan read with the Senate (Election) Act, 1975. The impugned order of the Returning Officer having been found to be based on misapplication and misinterpretation of the relevant law and the Constitutional provisions is hereby set aside. The nomination papers of respondent No.2 are accordingly rejected as he is found to be ineligible to be a candidate at the election to the Provincial Assembly from constituency No. PP-102, Sialkot. There shall, however, in the circumstances of the case, be no order as to costs.

A. A./M-960/L Appeal allowed.