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P L D 1995 Supreme Court 66

Present: Sajjad Ali Shah, CJ., Saad Saood Jan, Ajmal


Mian,
Saleern Akhtar, Saiduzzatnan Siddiqui, Fazal Ilahi
Khan,
Zia Mahmood Mirza, Fazal Karim, Muhammad Munir
Khan,
Mir Hazar Khan Khoso, Irshad Hasan Khan
and Mukhtar Ahmed Junejo, JJ

Pir SABIR SHAH---Appellant

versus

SHAD MUHAMMAD KHAN, MEMBER PROVINCIAL


ASSEMBLY,
N..W.F.P. and another---Respondents

JUDGMENT

SAJJAD ALI SHAH, C.J.---Both these direct appeals are


filed under section 8-B of the Political Parties Act,
1962, calling in question the majority decision of the
Election Commission of Pakistan (2 to 1), dismissing
the references filed by appellant as Leader of the
Parliamentary Party in N-W.F.P. Assembly. In the
references prayer was that the two respondents,
named above, may be declared disqualified from
being the members of the Provincial Assembly on the
ground of defection.

2. Briefly stated the relevant facts giving rise to the


filing of these appeals are that the respondents were
elected as members of the N: W.F.P. Assembly on the
tickets of Pakistan Muslim League (Nawaz Group),
which was able to secure fifteen seats in the
Assembly of eighty-three. The Pakistan Muslim
League (N) formed the coalition Government with the
support of the other political parties and independent
members and the appellant, Pir Sabir Shah, was
elected as the Chief Minister of the N: W.F.P. on 20th
October, 1993. Respondent Akhtar Hussain Shah was
appointed as Minister in the Cabinet of the appellant
and respondent Shad Muhammad Khan was elected
as the Deputy Speaker of the Assembly. The Pakistan
People's Party with the strength of twenty-two
members and their supporters in the House
presented a Motion of No-Confidence against the
Chief Minister on 3rd February, 1994.

3. According to the appellant meetings of the


Parliamentary Party in connection with No-
Confidence Motion were held on 5th, 17th and 22nd
February, 1994, which were not attended .by the
respondents. Instead, respondent Akhtar Hussain
Shah, who was Minister in the Cabinet, resigned from
the post on 20th February, 1994 and further, both the
respondents were present in the Press Conference of
Mr. Aftab Ahmad Khan Sherpao, Leader of the
Opposition in the Assembly, which was held on 21st
February, 1994 and televised on the National
Network in the Khabernama. Resultantly, in the
meeting of the Parliamentary Party, held on 22nd
February, 1994, it was decided to disqualify both the
respondents as contemplated under section 8-B of
the Political Parties Act, 1962 and the decision was
conveyed to the Speaker of the Assembly on the
following day on which voting was to take place on
the Motion of No-Confidence. On 23rd February,
1994, in the Assembly proceedings, the Speaker
declared the respondents as strangers in the House -
and ordered their expulsion. There was resistance
from the Opposition, which gave rise to
pandemonium, and in consequence No-Confidence
Motion could not be put to vote, and the Speaker
adjourned the House to 31st March, 1994.

4. On the other hand, on factual plane stand taken by


the respondents, as reflected in the written
statements filed by them before the Election
Commission of- Pakistan, is that in the Provincial
Assembly of N.-W.F.P. of eighty-three members,
PML(N) had secured fifteen seats and the appellant
entered into a written agreement with Awami
National Party, which had secured twenty-one seats,
and, in order to form the Government, had to rely on
the support of the independent members as well.
According to the agreement, which was signed by the
appellant and Begum Nasim Wali Khan, MPA from
ANP, some terms and conditions were settled for
allocation of portfolios to the independent members
which affected the independence of the Ministers in
the cabinet, and further that this agreement was
flouted by the appellant and that in such
circumstances efforts were made to bring about a
healthy and democratic change in the Government of
the Province. The respondents also denied that
meetings of the Parliamentary Party of PML(N) were
held as alleged, and also took up the position that
they were not put on notice for such meetings, if any.
Allegation of travelling from Islamabad to Peshawar
in a Chartered Plane was denied. It was further
averred in the written statements filed by the
respondents that the ruling of the Speaker, declaring
them strangers in the House and ordering their
expulsion on the ground of defection, was illegal and
violative of the Rules.

5. It appears from the record that the respondents


filed two Writ Petitions Nos. 230/94 and 231/94 on
23rd February, 1994, in the Peshawar High Court,
calling in question decision of the Parliamentary Party
and the ruling of the Speaker dated 23-2-1994,
declaring them strangers and ordering their expulsion
on the ground that they had defected from their
party, and were disqualified. It would be pertinent to
mention here that on 25th February, 1994, the
President of Pakistan issued a Proclamation under
Article 234 of the Constitution, where under the
appellant ceased to hold the office of Chief Minister.
The Peshawar High Court vide order, dated 28-2-1994
suspended the ruling of the Speaker and decision of
the Parliamentary Party of the PML(N). Before
passing of such order by the High Court, amended
memoranda of the writ petitions were filed on the
grounds that adjournment of the Session by the
Speaker to 31st March, 1994 was in violation of
Article 136 of the Constitution, which required voting
to take place not later than seven days from the day
on which resolution was moved in the Assembly for
vote of no-confidence against the Chief Minister. In
the meantime the Governor of the N: W.F.P. had
summoned the Session of the Provincial Assembly to
be held on 26th February, 1994, as contemplated
under Article 130(5) of the Constitution. Vide order,
dated 28-2-1994, the High Court suspended the
decision of disqualification of the respondents by the
Parliamentary Party, followed by the ruling of the
Speaker to that effect. This order was challenged in
the Supreme Court by C.Ps. 96 and 97 of 1994, filed
by the Speaker of the Provincial Assembly, and C.Ps.
98 and 99 of 1994, filed by the appellant, which were
disposed of by a short order, dated 6th March, 1994
by remanding the petitions to the High Court with
direction to implead the Parliamentary Party of
PML(N) alongwith their members and decide afresh
after giving them hearing.

6. During the course of hearing of the writ petitions


before the High Court, the parties arrived at a
settlement, in consequence whereof the decision of
disqualification was withdrawn so that the matter
could be decided by the Election Commission of
Pakistan as contemplated under section 8-B of the
Political Parties Act, 1962. It is stated that statement
was made by the counsel for the respondents that
they would not participate in any Session of the
Provincial Assembly till the matter of disqualification
was finally decided by the Chief Election
Commissioner/Election Commission of Pakistan. The
Advocate-General, N.-W.F.P. also made a statement
that the Governor would not call the Session of the
Assembly till decision is rendered by the forum of
Chief Election Commissioner/Election Commission of
Pakistan. Writ petitions were disposed of accordingly
on the basis of such statements.
7. The Speaker of the Provincial Assembly of N: W.F.P.
sent two references to the Chief Election
Commissioner at the behest of the appellant, who is
the leader of the PML(N) Parliamentary Party, as
contemplated under Article 63(2) of the Constitution,
for disqualification of the respondents on the ground
that they had defected and withdrawn from the
Pakistan Muslim League(N), and such decision was
taken by the Parliamentary Party of PML(N) in its
meeting held on 22nd February, 1994. The learned
Chief Election Commissioner dismissed these
references on the ground that they were
incompetent for the reason that disqualification on
the ground of defection was not mentioned in Article
63(1) of the Constitution but was mentioned under
section 8-B of the Political Parties Act, 1962. It may be
mentioned here that under section 8-B of the Political
Parties Act, 1962, forum provided is the Election
Commission of Pakistan and not the Chief Election
Commissioner. The appellant also filed two separate
references for disqualification of the respondents
under section 8-B of the Political Parties Act, 1962,
which have been dismissed by judgment of the
Election Commission of Pakistan by majority of 2 to 1
decision, which is impugned before us in these two
appeals under consideration.

8. It would be pertinent to mention that the


Presidential Proclamation dated 25-2-1994 under
Article 234 of the Constitution was to remain in force
for two months, and it was challenged in Constitution
Petition No. 12 of 1994, filed directly in this Court,
which was heard by Full Bench of nine Judges and
allowed by majority of 7 to 2 decision, declaring that
the Chief Minister and his cabinet shall cease to hold
office during the operation of the Proclamation but
after it has expired, the offices of the Chief Minister
and Cabinet shall stand revived. On the other hand
the minority view of the two Judges was that the
Constitution petition was not competent on the
ground that it was not maintainable in view of the bar
contained under Article 236(2) of the Constitution.
Decision of the Supreme Court in the case of Pir Sabir
Shah v. The Federation of Pakistan and others is
published in PLD 1994 SC 738.
9. The Proclamation under Article 234 was due to
expire after two months on 25-4-1994, and two days
before on 23-4-1994 the said Proclamation was
varied under Article 236 of the Constitution by
another Proclamation, under which Speaker of the
Provincial Assembly of N: W.F.P. ceased to hold the
office, and the Governor was directed to nominate a
member of the Assembly to preside over the Session.
In the result, the Governor nominated? one other
member of the Assembly to preside over the meeting
of the Assembly for the said Session. Against the
variation of the Proclamation, Constitution Petition
No. 28 of 1994 was filed directly in this Court on 2nd
May, 1994, which was admitted on 8th May, 1994
with order of issue of notices to the Attorney-General
for Pakistan and the Advocate-General, N.-W.F.P., as
contemplated under Order XXVII-A, C.P.C. and the
hearing was adjourned to 11th June, 1994.
Meanwhile, references were disposed of by the
Election Commission of Pakistan on 5th May, 1994 by
a split decision as mentioned above, holding that the
respondents were not disqualified. Against the
decision
of the Election Commission of Pakistan, two Civil
Appeals Nos. 381 and 382 of 1994 were filed in this
Court on 9th May, 1994, as contemplated under
section 8-B of the Political Parties Act, 1962, and
order thereupon was passed on 15th May, 1994 for
hearing alongwith Constitution Petition No.28 of 1994
on 11th June, 1994 at Islamabad.

?????????????????10. On 11th June, 1994, all


these cases could not be taken up for the reasons;
firstly, that the Attorney-General for Pakistan had
made a request in writing for adjournment on the
ground of his non-availability on that date and
secondly, that the Government had declared two
week-end holidays on Friday and Saturday, and the
date 11th June, 1994 fell on Saturday. Following the
order of the Government, the Supreme Court also
declared Saturday as non? working day. Such
administrative order was passed on 7th June, 1994.
Coalition Parties in Government of the appellant and
their supporters staged a strike at the outer gate of
this Court, and application was filed for urgent
hearing during the vacation, which had commenced
from 17th July, 1994. This application was heard at
Karachi and was dismissed on the ground that the
appellant was unable to show that the Government
of Mr. Aftab Ahmed Sherpao of the Pakistan Peoples
Party was surviving only on the basis of two votes of
the respondents, question of whose disqualification
on the ground of defection was pending final decision
in this Court. It was contended by the other side that
the appellant and his coalition partners did not enjoy
majority even after exclusion
of two disputed votes. Paragraph from the order,
dated 27th June, 1994 is reproduced as under:---

?????????????????" ?????????????On the


other hand it is submitted on behalf of the
respondents that presently total membership of the
House is 80 and voting had taken place on three
occasions in the past. In the election of Deputy
Speaker, Government secured 44 votes and in the
election of Leader of the House and at the time of
vote of no-confidence 42 votes were
cast in favour of the Government. 4 members of
Jamait Islami did not participate."
It was ordered that this matter would be heard at
Islamabad in the first week after reopening of the
Court after vacation. After vacation when this case
came up for hearing on 19th October, 1994, the cause
list indicated CAs 381 and 382/94 first and were
placed so for hearing followed by Constitution
Petition No. 28 of 1994. Office cleared the position
that the cases were placed for hearing in that order
under the orders of the Court as desired by the
parties.

1L On 19th October, 1994, when hearing


commenced, it was brought to the notice of the Court
that the respondents had filed application containing
objections to the, effect that the appeals contained
questions relating to the vices of section 8-B of the
Political Parties Act, 1962 and involved interpretation
of various provisions of the Constitution; hence
Federation of Pakistan and the Province of N.-W.F.P.
should be impleaded as respondents and notices be
issued to the Attorney-General for Pakistan and the
Advocate? General of N.-W.F.P. as provided in Order
XXVII-A; C.P.C. After necessary hearing notices were
issued to the Attorney-General for Pakistan and the
Advocates-General of the Provinces to assist the
Court on the question whether section 8-B of the
Political Parties Act, 1962 was ultra vices the
Constitution.

12. On the next date, hearing commenced in the


Court and Mr. Sharifuddin Pirzada, learned counsel
for the respondents, was allowed to address the
Court on .legal objection. He contended that section
8-B of the Political Parties Act, 1962 is ultra vices and
violative of Articles 2A, 17, 19, 62, 63, and 66 of the
Constitution, and that such objection was also raised
before the Election Commission, which declined to
interfere on the ground that the issue of the vices
could be decided by the Superior Courts.

12-A. At this stage it would be pertinent to reproduce


the issues framed in the references before the
Election Commission, which are as under:--

"(1) ??????Whether section 8-B, of the Political


Parties Act, 1962 is ultra vices the
????????Constitution and repugnant to the
Injunctions of Islam? OPR
(2) ?????????Whether the references are
incompetent, misconceived, mala fide and
?????????????????not maintainable? OPR

(3) ?????????What is the effect of the withdrawal of


the decision by the ?????????????????Parliamentary
Party? OPR

(4) ?????????What is the effect of the withdrawal of


the ruling of the Speaker? OPR

(5) ?????????Whether the respondents have


defected from Pakistan Muslim League
?????????????????(Nawaz Sharif Group), if so,
what is its effect? OPP

(6) ?????????Whether the respondents have


become disqualified from being
?????????????????members of the Provincial
Assembly of N.-W.F.P., if so, from what date? OPP
(7) ??????????Whether the Election Commission of.
Pakistan has jurisdiction to determine the vires of
section 8-B of the Political Parties Act, 1962?? OPP
(8) Relief

13.? In the majority decision of the Election


Commission, issues Nos. 1 and 7 were dealt with
together and relying upon the majority decision of
three Judges of Full Bench of four Judges of this Court
in the case of Humayun Saifullah Khan v. Federation
of Pakistan through Secretary, Ministry of Justice and
Parliamentary Affairs, Islamabad and 2 others (PLD
1990 SC 599), -it was held that the Election
Commission had no jurisdiction to determine the
vires of section 8-B of the Political Parties Act, 1962,
under which the same forum is created, and that the
High Court was competent forum for that purpose. In
the minority judgment of the reported case
mentioned above, it was held that the question of
vires of section 8-B of the Political Parties Act on the
ground that it violates fundamental rights was
question of great public importance and, therefore,
could-be brought before the Supreme Court under
clause 3 of Article 184, regardless of Article 199 of the
Constitution. In the reported case, Humayun Saifullah
Khan as Leader of the Parliamentary Party of IJI in the
Provincial Assembly of N.-W.F.P. filed references
before the Election Commission, seeking
disqualification of the respondents on the ground of
defection. Consent issues were framed including issue
to the effect that section 8-B of the Political Parties
Act was ultra vires the Constitution. In the meantime
respondent No.2 filed a Constitution petition in the
Peshawar High Court, calling in question vires of
section 8-B of the Political Parties Act and seeking
declaration to the effect that the
reference/references proceedings were incompetent
and without jurisdiction. The Constitution petition
was allowed, against which leave was anted by this
Court. This Court set aside the impugned judgment of
the High Court and remanded the case to the High
Court for disposal of the Constitution petition in
accordance with law, and observed that while the
Constitution petition was awaiting decision on merits
in the High Court, there shall be no restraint on the
Election Commission in the matter of adjudicating the
controversy pending before it. On the other hand in
the instant case, in the minority view of the Election
Commission, it is held that the question of vires of
section 8-B of the Political Parties Act could not be
determined by that forum and could be determined
by Court of general jurisdiction and in spite of that
finding, opinion is offered that section 8-B is not ultra
vires the Constitution and is not hit by any
fundamental rights. We shall not detain ourselves any
further on this point in view of the legal position
enunciated in majority decision in the case of
Humayun Saifullah Khan (supra). As we would like this
question of vires to be determined by the proper
forum, hence advert to another very important
aspect of this case, that is, whether section 8-B of the
Political Parties Act is ultra vires the Constitution to
the extent of forum, which is the Chief Election
Commissioner, as contemplated under Article 63 of
the Constitution.

14. Determination of question of forum involves


question of jurisdiction. Direct appeals are filed
before this Court under section 8-B of the Political
Parties Act, 1962, which is in conflict with Article 63
of the Constitution providing only one forum of the
Chief Election Commissioner without providing
further forum of appeal before the Supreme Court.
The Supreme Court exercises jurisdiction which is
conferred upon it by the Constitution or by or under
any law as is contemplated under Article 175(2) of the
Constitution. The Supreme Court exercises original
jurisdiction, appellate jurisdiction and advisory
jurisdiction and exercises power to transfer cases as is
contemplated under Articles 184 to 186-A of the
Constitution. It would be pertinent to mention that
under Article 184(3) of the Constitution this Court can
exercise jurisdiction without prejudice to Article 199 if
it considers that a question of public importance with
reference to the enforcement of any of the
fundamental rights conferred by Chapter 1 of Part II is
involved and has power to make an order of the
nature mentioned in that Article. Under Article 187
the Supreme Court has power to issue such
directions, orders or decrees as may be necessary for
doing complete justice in any case or matter pending
before it, including an order for the purpose of
securing attendance of any person or discovery or
production of any document. Question now arises for
consideration whether this Court can go into the
question whether the appeals filed before it under
section 8-B of the Political Parties Act, 1962 are
competent or not and to that extent whether the
same provision is ultra wires the Constitution being
inconsistent with Article 63 of the Constitution.

15. In the case of Waris Meah v. State (PLD 1957 SC


(Pak.) 157), the appellant was convicted and
sentenced as he pleaded guilty in the trial Court and
his appeal was dismissed by the High, Court. Normally
against pleading guilty appeal was competent to ..the
extent of question of quantum of sentence only and
not on merits but in this case the Supreme Court
interfered on the ground that in Foreign Exchange
Regulation Act, 1947 three forums with powers to
give different punishments were provided entailing
punishments of unequal nature which offended
against Article 5 of the then Constitution envisaging
fundamental rights to equality of treatment.

16. In the case of Noora and another v. The State (PLD


1973 SC 4699) question arose whether leave should
be granted in the case when findings of facts were
concurrent and against the appellant and references
were made in that context to the practice prevalent
in the Privy Council and the Federal Court, which was
predecessor of this Court and it was held that the
Supreme Court being at apex of judicial system in the
country, armed with all powers of Court of appeal
without any limitation, was not bound by decisions of
Privy Council and the Federal Court, circumscribing
their own jurisdiction by self- imposed restrictions. In
that case murder -took place on 4-H-1966 and
hearing of the appeal in the Supreme Court on 12th
and 13th March, 1973; hence reference was made to
Articles 159 and 160 of the Constitution of 1956,
Article 58 of the Constitution of 1962, and Article 186
of the Interim Constitution of 1972, in which
appellate jurisdiction had been specifically defined.

?????????????????17. In the 1973 Constitution


apart from other jurisdictions, which are mentioned
specifically, Article 187 confers upon the Supreme
Court jurisdiction and power .a to issue such
directions, orders car decrees as may he necessary for
doing complete justice in any case or matter pending
before it. In the instant case appeals filed under
section 8-B of the Political Parties Act, 1962, are
pending before this Court and this Court can go into
the question whether they are competently filed or
not and in that context also can go into the question
of vices of section 8-B to the extent of forum. This
Court has to go into details of hearing of arguments
of both the sides in order to come to conclusion
whether appeals are competently filed or not. Article
187 confers upon this Court ample authority and
jurisdiction to do complete justice and give fording to
that effect about competence of forum.

18. In support of the proposition reference can be


made to the case of Ch.2ahur Ilahi, MNA v~ The State
(PLD 1977 SC 273). Petitioner Ch. Zahur Ilahi was
named as accused in a murder case in which bail was
granted but he was taken in custody in a case
registered against him under section 16 of the west
Pakistan Maintenance of Public Order XXXI of 1960.
Two more case were registered against him under
Rules 42 and 49 of Defence of Pakistan Rules, 1971.
He applied for bail in the High Court and his plea was
rejected by the ground that under section 13-A of the
Defence of Pakistan Ordinance XXX of 1971
jurisdiction was barred as the Special Tribunal was
seized of the matter. It was held by this Court that
jurisdiction of the superior Courts could not be taken
away except by express words or necessary
implication. A distinct and unequivocal enactment is
also required for the purpose of either adding to or
taking from the jurisdiction of a superior Court of law.
It was further held that in the absence of express and
clear-cut exclusion of jurisdiction as contained in
section 6(f) of the Criminal Laws Amendment (Special
Tribunal) Ordinance, V of 1968 excluding application
of Chapter 39 of the Cr.P.C., it cannot be presumed
that jurisdiction of the superior Courts to grant leave,
is excluded or barred. Consequently bail was granted.

19. In the case of Said Mian v. Mien Said Baghdad


(1980 SCMR 420) scope of Article 187 to be read with
Article 185(3) of the Constitution came up for
consideration before this Court in conjunction with
Order XLIX, Rule 6 of :;he Supreme Court Rules, 1956
and section 427 of Criminal Procedure Code. it was
held that mere use of different terminology in the
provisions mentioned above made no substantial
difference as the Supreme Court is empowered by
Article 187 to make necessary orders for ends of
justice in suitable cases. In consequence after
granting leave against acquittal order was passed for
detention of the acquitted persons. In this context
the Supreme Court further observed that no doubt
the High Court was specifically empowered under
section 421, Cr.P.C. and since this power was
essentially a power to enable securing attendance of
the persons being provided against, consequently the
sane power alas conferred upon the Supreme Court
under Article 18'7 of the Constitution, which is
empowered to issue such directions, orders, or
decree:. including order for the purpose of securing
attendance of any person or the discovery or
production of any document.

20. In the case of Hayat Btu and others v, The State


(1981 SCMR 1) scope of Article 187 was examined
alongwith Article 185(2 j and (3). In that case the
convict after filing petition became fugitive and
absconding. Question came up for consideration
whether appeal of absconding convict, fled as a
matter of right car .or grant of special leave, could be
disposed of without hearing the sane on merits and it
was held by this Court that there was nothing in the
Constitution, which barred decision of appeal on the
basis other than merits. It was further observed that
powers of the Supreme Court extended to passing of
all orders necessary for doing complete justice or
otherwise ancillary or incidental to facilitate exercise
of such powers. In the case of Mohammed Aslan and
another v. Munshi Muhammad Bahrain and others
(1991 SCMR 1971) question came up for
consideration whether the appeal was not competent
under section 39 of the Arbitration Act, which was
unsuccessfully availed of without further challenge,
and the act of the defendants in participating in
subsequent suit proceedings precluded them from
challenging by way of further revision the order which
had by their own conduct and in view of the
antecedent proceedings had acquired finality. Scope
of section 39 of the Arbitration Act and section 115 of
Civil Procedure Code was considered in conjunction
with Article 185(3) and Article 187(1). In final
conclusion this Court in order to keep the channel of
decisions in the civil hierarchy uninterrupted and for
doing complete justice accepted the appeal and
remanded the case to the appellate Court of
competent jurisdiction for decision according to law.

?????????????????21. In the case of Mst. Safyya


and another v. Mohammed Rafique and 6 others (PL
D 1993 SC 62) scope of Articles 187(1) and 185(3) of
the Constitution was examined in the light of section
42 of the Specific Relief Act, Articles 70 and 72 of
Qanun-e-Shahadat and section 25 of the Contract Act.
In that case three Courts below misread the evidence,
on the question whether the plaintiffs were
daughters of vendor and failed to give proper
consideration to material facts which had direct
bearing on such question. Validity of the sale-deed
was in challenge on the ground that the vendor was
not fit to enter into contract as he was unconscious
due to illness at the relevant time. It was held that
the Supreme Court although normally would not
permit any appellant to urge a ground on which leave
had not been granted, but in a fit? case, if dictates of
justice demanded, this Court would permit appellant
to urge any other ground particularly when same was
in issue before the Courts below and was directly
linked with the ground on which leave had been
granted. It was further held that no party could be
denied relief on technical ground if it was otherwise
entitled to such relief.
22. In support of the proposition that this Court has
more than ample powers to do complete justice, as
contemplated under Article 187 of the Constitution,
reference can be made to Order XXIII, Rule 6 of the
Supreme Court. Rules, 1980, which also provides that
nothing in these. Rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to
make such orders as may be necessary for the ends of
justice or to prevent the abuse of the process of the
Court. This rule is consistent with the spirit and
amplitude of the jurisdiction and power as conferred
upon it by the Constitution..

23. From what is stated above it would appear crystal


clear that this Court can go into the question of
competency of the appeals filed before it under
section 8-B of the Political Parties Act and having
done that we are of the considered opinion that this
Court can decide question of vices of section 8-B to
the limited extent of forums envisaged under section
8-B of the Political Parties Act, which are different
from the forum of the Chief Election Commissioner,
envisaged in Article 63 of the Constitution as the only
forum for determination of question of
disqualification. It may be mentioned here that during
the hearing contention was raised that since counsel
for respondents Shad Muhammad Khan and Akhtar
Hussain Shah contested the references before the
Election Commission without objection to the effect
that the Election Commission had no jurisdiction
hence it would not be open to them now to turn
around and say that the forums of Election
Commission for determination of the reference and
appeal before the Supreme Court were not
competent and that this provision was in conflict with
Article 63 of the Constitution, which - provides only
one forum of the Chief Election Commissioner. This
contention is not tenable for the reason that question
of jurisdiction is very important and fundamental in
nature and if a forum has no jurisdiction, the same
cannot be conferred upon it by consent of the
parties.? Question of jurisdiction is to be considered
by the Court even though not raised by the parties. In
support of the proposition reference can be made to
the case of Raleigh Investment Company Limited v.
The Governor-General-in Council (PLD 1947 Privy
Council 19). There is no dispute about the fact that
the doctrine of estoppel cannot be applied to defeat
the provisions of statute or enactment affecting
jurisdiction of the Court. Reference can also be made
to the ease of Muhammad Suleman v. Javed Iqbal
(PLD 1982 SC (AJ&K) 64). Having held that this Court
can go into the question of competence of forum and
to that extent vices of section 8-B, now we advert to
section 8-B of the Political Parties Act 1962.

24. In the context of what is stated above it would be


necessary to go into the history of the Political Parties
Act, 1962 with particular emphasis on insertion and
import of section 8-B thereof. Pakistan came into
being in 1947 as a result, of independence, and
thereafter for the first time Constitution was
promulgated in 1956, giving the country
parliamentary form of Government. On 5th
September, 1958, Chaudhry Azizuddin and Mr. Yousuf
Haroon moved motions in the National Assembly to
stop floor-crossing. No further action was taken
thereupon, and on 7th October, 1958 Martial Law
was proclaimed in the country, and in consequence
the Constitution of 1956 was abrogated and, inter
alia, all the Political Parties were abolished.
25. Field Martial. Ayub Khan, President of Pakistan,
gave the country his own Constitution, which came
into force on 1st March, 1962, providing presidential
form of Government. Political Parties were revived on
5th July, 1962 and the Political Parties Act (III of 1962)
was promulgated on 15th July, 1962, providing for
the formation and regularization of the Political
Parties. At that time fundamental rights were not
available, which were inserted in the Constitution by
the Constitution's (First Amendment) Act, 1963 (I of
1964), which came into force on 10-1-1964. The
Political Parties Act was mentioned in the Fourth
Schedule to the Constitution, hence was saved from
operation of fundamental rights. Section 8 in the said
Act contemplated certain disqualifications for being a
member of the National Assembly or a Provincial
Assembly. Section 8 in the original form before
amendments is reproduced as under :?

"(1)..A person who has been an office-bearer of the.


Central or a Provincial Committee of a Political Party
dissolved under subsection (2) of section 6 or who
has been convicted under section 7 shall be
disqualified from being elected as a member of the
National Assembly or a Provincial Assembly for a
period of five years from the date of such dissolution
or conviction, as the case may be.

(2) If a person, having been elected to the National or


a Provincial Assembly as a candidate or nominee of a
political party, withdraws himself from it, he shall,
from the date of such withdrawal, be disqualified
from being a member of the Assembly for the un-
expired period of his term as such member unless he
has been re-elected at a bye-election caused by his
disqualification."

26. It is noteworthy that section 8(2) of the Political


Parties Act, 1962 as? reproduced in the original form
mentions disqualification on the ground of
"withdrawal" and not "defection". No mention is
made in the said provision about forum, which was
the Chief Election Commissioner already provided
under Article 104(2) of .the Constitution of 1962,
which is reproduced as under:-?

"If any question arises whether a member of an


Assembly has, after his election, become disqualified
from being a member of the I Assembly, the Speaker
of the Assembly shall refer the question to the Chief
Election Commissioner and, if the `Chief Election
Commissioner is of the opinion that the member has
become disqualified, the member shall cease to be a
member':'

27. This question came up for consideration before


the West Pakistan . High Court at Lahore in the case
of Ghulam Mustafa Khar v. Chief Election
Commissioner of Pakistan and others (PLD 1969
Lahore 602) to the limited extent of powers of
Speaker and in that regard it was held that the
Speaker, while making a reference under Article
104(2) of the Constitution, did not determine any
substantial right of the person affected and as such
was not required to afford an opportunity of hearing
before making reference to the Chief Election
Commissioner. It was contended that before making
reference, the Speaker was required to conduct
preliminary enquiry in which he had to give hearing to
the affected member. It was held by the Court that
since there were no such words in Article 104(2) of
the Constitution of 1962 and in the absence of such
words it would not be right to assume its existence by
interpretation, particularly when dealing with a
Constitutional provision.

28. On 25th March, 1969 Martial Law was proclaimed


in the country and the Constitution of 1962 was
abrogated, but all the laws including Ordinances,
Martial Law Regulations, Orders and Rules, enforced
immediately before abrogation of the Constitution,
were allowed to continue in force. Thereafter,
elections were held in the country on the basis of the
political parties and finally the Constitution of Islamic
Republic of Pakistan, 1973 was framed and
promulgated. At that time, the Political Parties Act,
1962 was in force and section 8(2) thereof, as
reproduced in the original form, held the field. Under
Article 62 of this Constitution qualifications for
membership of Parliament and under Article 63
disqualifications are prescribed. Article 63(2) provides
the forum of the Chief Election Commissioner to
determine the question whether a member has
become disqualified or not after such question is
referred to him by the Speaker or the Chairman, as
the case may be. Even at that time there was anxiety
to control floor-crossing, which was reflected in
Article 96 of the Constitution, which provided for vote
of no-confidence against the Prime Minister. Proviso
to sub-Article (5) of Article 96 is reproduced as
under:--

"...Provided that, for a period of ten years from the


commencing day or the holding of the second general
election to the National Assembly whichever occurs
later, the vote of a member, elected to the National
Assembly as a candidate or nominee of a political
party, cast in support of a resolution for a vote of no
confidence shall be disregarded if the majority of the
members of that political party in the National
Assembly has cast its votes against the passing of
such resolution:"

29. Article 226 of the Constitution of 1973 provided


that all elections l under the Constitution other than
those of the Prime Minister and a Chief Minister shall
be by secret ballot. Later Article 96 was repealed by
President Order No.14 of 1985, and the words "other
than those of the Prime Minister and a Chief
Minister" in Article. 226 were omitted by President
Order No.24 of 1985. Subsection (2) of section 8 of
the Political Parties Act was omitted by' Ordinance
NOXXI/1974 with effect from 8th May, 1975, which
was later converted into Act NO.XXI of 1975 on 18th
February, 1975.

30. In 1977 again Martial Law was promulgated in the


country, which was lifted in 1985. Before lifting that
general elections were held, which were not on the
basis of the Political Parties. Vide President Order
No.14 of 1985, the Constitution was revived by the
Revival of the Constitution of 1973 Order of 1985 on
2nd March, 1985. The Constitution was substantially
amended on 11-11-1985 to strike balance between
the powers of the President and the Prime Minister
by Constitution (Eighth Amendment) Act XVIII of
1985. Martial Law was finally lifted by Proclamation
of Withdrawal of Martial Law on 30th December,
1985. The Political Parties Act, 1962 was amended by
Act XXII of 1985, inserting section 8-B providing
disqualification on the ground of defection, which
reads as under:--
" ....(1) If a member of a House,
(a) ?????????having been elected as such as
candidate or nominee of a political party, or

(b) ??????????having been elected as such


otherwise than as a candidate or nominee of a
political party and having become a member of a
political party after such election, defects or
withdraws himself from the political party he shall,
from the date of such defection or withdrawal, be
disqualified from being a member of the House for
the un-expired period of his term as such member,
unless he has been re-elected at a bye-election held
after his disqualification.

(2) ??????????If any question arises whether a


member of a House has become disqualified under
subsection (1) from being a member, the question
shall, on a reference by the Leader of the
Parliamentary Party concerned, be determined by the
Election Commission.

An appeal against a decision of the Election


Commission under subsection (2) shall lie to the
Supreme Court, within thirty days of the decision.
Explanation.-- 1n this section, "House" means a
House of the Majlis-e?Shoora (Parliament) and
includes a Provincial Assembly."

In order to maintain sequence of the events in the


background, it would be necessary to mention that in
1977 Martial Law was promulgated after toppling the
Government of the Pakistan People's Party. By
Political Parties (Amendment) Ordinance No.XLII of
1979 dated 30th August, 1979 drastic amendments
were made in the Political Parties Act, inserting
section 3-A, requiring political parties to submit
accounts and 3-B, making registration of the political
parties compulsory. This was objected to by the
Pakistan Peoples Party, which did not participate in
the elections of the Local Bodies held in 1979. Later,
amendments in the Political Parties Act were
challenged by the Co-Chairperson of the Pakistan
People's Party in the Supreme Court in the case titled
Ms. Benazir Bhutto v. Federation of Pakistan and
another (PLD '1988 SC 416) as being violative of
Articles 17 and 25 of the Constitution. Vires of
sections 7 and 8 of the Political Parties Act were also
questioned. This Court allowed the petition, holding
that section 3-B was void in its entirety, and in regard
to sections 7 and 8, it was held that this was for the
Legislature to
amend them and that nothing needed to be said
about their vires except for the comments made
therein.

?????????????????32. Reading of section 8-B of


the Political Parties Act, 1962 shows that it is in fact
enlargement of section 8-A, and disqualification is
provided on the ground of defection. Previously, only
"withdrawal" was mentioned as ground of
disqualification. In section 8-B(1)(b), it is provided
that if a member of political party defects or
withdraws himself from that political party, he shall
from the date of such defection or withdrawal, be
disqualified from being member of the House for the
un-expired period of his term as such member, unless
he has been re-elected at a bye-election held after his
disqualification. Subsection (2) of section 8-B further
provides that question whether a member has
become disqualified shall be decided by the Election
Commission on a reference to be made by the Leader
of the Parliamentary Party concerned. Subsection (3)
of section 8-B further provides that against the
decision of the Election Commission, appeal shall lie
to the Supreme Court. Amendments in the shape of
section 8-B were inserted in the Political Parties Act,
1962 by Act XXII of 1985 on 24th December, 1985.

?????????????????33. Thereafter, section 8-B of


the Political Parties Act, 1962 was amended by way of
substitution by Ordinance XIII of 1988 and Ordinance
X of 1990, and both these Ordinances expired by
efflux of time, rendering amendments of substitution
as redundant. Section 8-B was again amended vide
Act XXIII of 1992 on 10th December, 1992, providing
addition of words "after providing to such member
opportunity to be heard" in subsection (2) after the
words "Election Commission". Section 8-B was once
again amended by' Ordinance XXX of 1993 on 7th
September, 1993 by the Care-taker Government,
substituting forum of the Election Commission by
Majority of the Members of such Parliamentary Party
of the House in subsection (2), and providing forum of
appeal before the Speaker of the National Assembly
or the Chairman of the Senate in place of the
Supreme Court. This Ordinance was not converted
into an Act by the Parliament, hence it expired after
four months? on 6th February, 1994. After expiry of
the amending Ordinance, section 8-B got revived as it
stood before promulgation of Ordinance XXX of 1993;
providing forums of the Election Commission to
determine the question of F disqualification on
reference by the Leader of the Parliamentary Party
and appeal to the Supreme Court.
?????????????????????????11

34. Contention was raised before us that section 8-B


of the Political Parties Act after the lapse of last
Ordinance No.XXX of 1993 amendment, made by way
of substitution, would not automatically be revived as
is contemplated under Article 89 read with Article
264(c) of the Constitution. In support of the
proposition reliance is placed an the case of? Ittefaq
Foundry v. Federation of Pakistan (P"LD 1990 Lahore
121). W e are of the view. that it would not be
necessary to go into the question of effect of repeal
in the light of the contention raised above for the
reason that the main question which falls for
consideration before this Court is to find out as to
what was the intention of the Constitution-makers in
providing forum of the . Chief Election Commissioner
as contemplated under Article 63(2) of the
Constitution, which is to be considered as the only
forum for the reason that no other forum is provided
for hearing of appeal against the decision of the Chief
Election Commissioner. Article 63(1)(p) envisages that
disqualification under any law for the time being in
force can be added to the disqualifications mentioned
[ under Article 63(1) of the Constitution, but it is
nowhere specifically said m G Article 63 that for the
purpose of determining the question of
disqualification? forums can be added or different
forums can be provided against the forum of the
Chief Election Commissioner, as contemplated under
Article 63 of the? Constitution.

35. In the Constitution, there are two Chapters on the


subject of election in Part VIII covered by Articles 213
to 226. Chapter I relates to the subject of the Chief
Election Commissioner and the Election Commissions.
Under Article 213, the Chief Election Commissioner is
to be appointed by the President in his discretion. His
prerequisite qualifications, term of the office and how
he is to be removed are mentioned in detail. Under
Article 218, there is provision for the Election
Commission to be constituted for the purpose of each
general election consisting of the Chief Election
Commissioner as its Chairman and two members,
each of whom shall be a Judge of the High Court, to
be appointed by the President after consultation with
the Chief Justice of the High Court concerned and the
Chief Election Commissioner. Duties of the Election
Commission are to organize and conduct the election
and make such arrangements as are necessary to
ensure that the election is conducted honestly, justly,
fairly and in accordance with law and that corrupt
practices are guarded against. As against the Election
Commission, the duties of the Chief Election
Commissioner are different, relating to the
preparation of electoral rolls, organizing and
conducting election to fill casual vacancies, and
appointing Election Tribunals. Term of the Chief
Election Commissioner is for three years, which can
be extended by the National Assembly, not exceeding
one year, by way of resolution. Terms and conditions
of the Chief Election Commissioner mentioned above
relate to permanent Chief Election Commissioner.
Article 217 provides for appointment of Acting Chief
Election Commissioner during the absence of
permanent Chief Election Commissioner, who shall be
a Judge of the Supreme Court nominated by the Chief
Justice of Pakistan. Keeping in view the division of
powers and functions between the Chief Election
Commissioner and the Election Commission, it is to
be construed that in Article 63 only the Chief Election
Commissioner is declared to be the forum for
determining the questio?n of disqualification of a
member on reference from the Speaker or the
Chairman of the encore and no further forum of
appeal is provided? making decision of the Chief
election Commissioner as final. Section 8-B of the
Political Parties Act, 1962 provides forums which are
different from the forum of the Chief Election
Commissioner, as contemplated under Article 63(2) of
the Constitution. To that extent, there is conflict
between Article 63 of the Constitution and section S-
B of the Political Parties Act. There is no cavil with the
proposition !' that in case there 6; conflict between
the Constitution and subordinate law, then the
Constitution shall always prevail to the extent of
conflict. In support of the proposition reference can
be made to the case of Raja Muhammad Afzal v. Ch.
Muhammad Altaf Hussain and others (1986 SCMR
1736) in which it is held that where express
authorization exists in favour of two authorities or
forums in respect of identical subject, one conferred
by superior law would prevail over that conferred by
inferior law.

36. Second Chapter, relating to the subject of


elections in the Constitution, covers electoral laws
and conduct of elections. In that Chapter, Article 225
envisages that no election to a House or a Provincial
Assembly shall be called in question except by an
election petition presented to such Tribunal and in
such manner as may be determined by Act of
Parliament. This clearly shows that the forum of
Election Tribunal for decision of election dispute is
provided in the Constitution by express provision,
which is to be read in conjunction with Article 219(c)
of the Constitution, which authorizes the Chief
Election Commissioner to appoint the Election
Tribunals. It is further mentioned in Article 225 that
election petition presented to such Tribunal is to be
decided in the manner as may be determined by the
Act of Parliament. In this context reference can be
made to the Representation of the People Act, 1976,
which reiterates the powers of the Chief Election
Commissioner to appoint as many Election Tribunals
as may be necessary as contemplated' under section
57 thereof. It is further provided that Election
Tribunal shall consist of a person, who has been, or is,
or at the time of his retirement as a District and
Sessions Judge, was qualified to be a Judge of a High
Court. Section 67 of the said Act further provides
forum of appeal before the Supreme Court against
the decision of the Election Tribunal. There is obvious
difference between the provisions of the
Representation of the People Act, 1976 and section 8-
B of the Political Parties Act, 1962, in providing the
forums as in the case of the Representation of the
People Act; 1976 there is Constitutional authority as
contemplated under Articles 219(c) and 225 of the
Constitution and there is no inconsistency in the
forums provided both in the Constitution and the
Representation of the People Act, 1976. On the other
hand, there is very clear inconsistency and conflict in
respect of forums provided in Article 63(2) of the
Constitution and section 8-B of the Political Parties
Act, 1962.

37. Perusal of section 8-B of the Political Parties Act,


1962 shows very clearly that the words "defects" and
"withdraws" are not defined in the Constitution or
the relevant law. With the result, confusion has arisen
not only with regard to the forums but also with
regard to the definition of the terms mentioned
above. In the result, now reliance is to be placed by
the Courts on dictionary meanings for using these
terms and considering defection as ground for
dissolution of the Assemblies on moral justification. In
the tracheotomy of the powers between the
Legislature, Judiciary and Executive, it is undeniably
the duty of the Legislature to make laws which are
comprehensive and perfect in all respects without
leaving room for ambiguity, and it is the duty of the
Judiciary to interpret the Constitution and the laws as
they are, without transgressing the limits set on its
powers of interpretation by filling in the blanks left by
the Legislature. In the case of the State v. Ziaur-
Rehman and others (PLD 1973 SC 49) it was held that
"the Supreme Court has never claimed to be above
the Constitution nor to have the right to strike down
any provision of the Constitution. It has accepted the
position that it is a creature of the Constitution; and
that it will even confine itself within the limits set by
the Constitution which it has taken oath to protect
and preserve- but it does claim and has always
claimed that it has the right to interpret the
Constitution and to say as to what a particular
provision of the Constitution means or does not
mean, even if that particular provision is a provision
seeking to oust the jurisdiction of this Court".
Likewise, in the case of Fauji Foundation and another
v. Shamimur Rehman (PLD 1983 SC 457) it is held by
this Court that in the Constitutional system of
Pakistan though there is tracheotomy of powers
between Executive, Legislature and Judiciary, yet
each organ or branch of it operates in defined field of
course with inherent limitations that one organ or
sub-organ may not encroach upon legitimate field of
others.

38. ' It appears clearly from what is stated above that


on the subject of defection law is to be framed by the
Legislature and has to be construed or interpreted by
the Courts as it is. On the subject of defection the law
which holds the field is the Political Parties Act, 1962
which cannot be improved by the Courts during
interpretation in the sense that some thing can be
added to it which is not put there by the Legislature.
We cannot and should not make any comments on
the merits or demerits of defection because these
questions are to be left open to be determined by
competent forum where such questions can? be
raised and vires of law are questioned. It would be
pertinent to mention that neighbouring country India
also faced the same problem which has been solved
in 1985 by both major parties; one in Government
and other in opposition, by agreeing upon
Constitutional Fifty- Second Amendment Bill, which
has been incorporated in the Tenth Schedule to the
Constitution of India suitably amending Article 102
thereof as well. Resultantly, now in the Indian
Constitution law on the subject of defection is
categorical and explicit and grounds of defection are
mentioned in detail.

39. For the facts and reasons stated above, we hold


that section 8-B of the Political Parties Act, 1962 is
ultra vires the Constitution to the extent of forums M
only, which are in conflict with Article 63 of our
Constitution in which forum of the Chief Election
Commissioner is specifically provided, which is final as
no other forum of appeal is provided therein. High
Court is competent forum where vires of section 8-B
of the Political Parties Act, 1962 can be challenged N
on other grounds. The Chief Election Commissioner is
competent to hear references which can be disposed
of by him on merits as previously the references were
dismissed by him on the short ground of
incompetence without going into the question of
merits for the reason that defection was 'not
mentioned as ground of disqualification in Article 63
of the Constitution. Parties can approach the Chief
Election Commissioner who will dispose of the
references on merits. On 16th November, 1994 we
had dismissed both these appeals as incompetent on
the ground that section 8-B of the Political Parties P
Act, 1962 was ultra vires the Constitution to the
extent of forums by a short order for reasons in detail
to be recorded later, which are as above.

(Sd)
Sajjad Ali Shah, CJ

(Sd.)
Zia Mahmood Mirza, J

(Sd.)
Fazal Karim, J

(Sd.)
Muhammad Munir Khan, J

(Sd.)
Mir Hazar Khan Khoso, J

(Sd.)
Irshad Hasan Khan, J,

(Sd.)
Mukhtar Ahmed Junejo, J

SAAD SAOOD JAN, J.-- I have had the privilege of


reading the detailed judgments recorded by the
learned Chief Justice and my learned brothers, Ajmal
Mian and Saeeduzzaman Siddiqui, JJ. I regret, I am
unable to support the judgment of the learned Chief
Justice for my views in the main coincide with those
expressed by my learned brothers. Considering the
importance of the issues raised in these appeals
which are of vital importance for the future of
Parliamentary democracy in our country I am
appending a short note of my own.

2. These are two appeals under section 8-B(3),


Political Parties Act, Act III of 1962, from the
judgment of the Election Commission whereby the
two references made by the appellant to the
Commission for the enforcement of the
disqualification as set out in subsection (1) of the said
section against the respondents on the ground of
defection/withdrawal were dismissed.

3. The appellant as well as the respondents in the two


appeals, namely, Shad Muhammad Khan (respondent
in Civil Appeal No.381 of 1994) and Akhtar Hussain
Shah (respondent in Civil Appeal No.382 of 1994)
were. elected as members of the N.-W.F.P. Assembly,
hereinafter referred to as the Assembly, on the
tickets of the Pakistan Muslim League (Nawaz Group).
The appellant was elected as their leader by the
members of this Group in the Assembly. With the
assistance of certain other members who did not
belong to his Group the appellant was able to muster
a majority in the Assembly; he was thus in a position
to seek and in fact he did succeed in getting elected
to the office of Chief Minister of the Province. He
appointed Akhtar Hussain Shah, respondent as
Minister in his Cabinet. With the support of his
Group, Shad Muhammad Khan, respondent, was
elected as Deputy Speaker of the Assembly.

4. The support enjoyed by the appellant in the


Assembly was a tenuous one and the defection or
withdrawal by even two or three members from his
Group was sufficient to turn his majority into minority
in the Assembly. The Opposition party in the
Assembly was aware of the precariousness of the
appellant's position and was looking for an
opportunity to remove him from the office of Chief
Minister.

5. On 3-2-1994 some members of the Opposition


party gave notice to the Speaker of the Assembly of
their intention to move a resolution for a vote of no-
confidence against the appellant. The Speaker
summoned a session of the Assembly for 16-2-1994 in
response to the said notice. The Assembly duly met
on the said date and the Speaker fixed 23-2-1994 for
the purpose of putting the resolution to the vote of
the Assembly.

6. According to the appellant he called three


meetings of his Group in the Assembly on 5-2-1994,
17-2-1994 and 22-2-1994 but the respondents failed
to attend these meetings; in fact, they made
themselves inaccessible to him; on the other hand,
they began socializing with the Opposition and were
seen in the company of the leader of the Opposition
on the television; apart from that their names were
included by the leader of the Opposition in the list of
members who were supporting the resolution.
Convinced that they had defected/withdrawn from
his Group and had joined the opposition the
members of his Group passed a resolution in terms of
section 8-B(1), ibid, as amended by Ordinance XXX of
1993, declaring that the respondents stood
disqualified from the membership of the Assembly.
On 22-2-1994 the appellant as the leader of his Group
informed the Speaker of the disqualification which
the respondents had incurred.

7. On becoming aware of the resolution passed by the


appellant's Group and fearing that they would not be
allowed to participate in the proceedings of the
Assembly on the day when the resolution was to
come up for a vote in the Assembly, the respondents
filed Constitution petitions in the High Court inter alia
to prevent the Speaker from interfering with their
rights as Members of the Assembly. However, before
any order could be made in their favour by the High
Court the session of the Assembly was held. Their
apprehension that they would not be allowed to
participate in the proceedings turned out to be real
for when the Assembly met the Speaker, on a point of
order, raised by some members of appellant's Group,
declared them ors staggers in the House and 'had
them removed therefrom. Immediately thereafter
there was a rumpus in the House but then in these
appeals we are not concerned as to what happened
after the respondents were made to leave the
Assembly.
8. The respondents amended their Constitution
petitions which were pending in the High Court in
order also to challenge the legality of the order of the
Speaker whereby they were held to be disqualified
from being members of the Assembly. The High Court
made an interim order suspending the order of the
Speaker. This order was challenged by the appellant
in this Court through appeals by special leave. The
appeals were accepted and the interim order was
withdrawn; instead, the High Court was requested to
dispose of the Constitution petitions expeditiously,
preferably within three weeks. Ultimately, the
Constitution petitions were disposed of by the High
Court in terms of a consent order. In pursuance of the
compromise among the parties the Speaker as well as
the Parliamentary Group of the appellant withdrew
their decisions whereby the respondents were held
disqualified from being members of the Assembly.
Instead, the Speaker made a reference to the Chief
Election Commissioner for enforcement of the
disqualification which the ]respondents had incurred,
on account of their alleged defection/withdrawal
from the. appellant's Group. Similarly, the appellant
also moved two references before the Election
Commission in terms of subsection (2) of section 8-1i,
Political Parties Act, as originally enacted by Act XXII'
of 1985. The Chief Election Commissioner dismissed
the reference made to him by the Speaker on the
ground of competency. As regards the references
preferred by the appellant the Election Commission
dismissed the same with a majority of two-to-one
with the finding that the accusation of defection or
withdrawal as alleged against the respondents had
not been established on the evidence placed on the
record.

9. Before the hearing of the appeals could begin an


application was moved by the respondents to the
effect that as important questions relating to the
interpretation of the Constitution were likely to arise
for consideration before the Court the Federal
Government and the Government of N.-W.F.P.,
should also be impleaded as parties and the Attorney-
General and the Advocate-General of N-.W.F.P,
should be invited to assist the Court. The request with
regard to the impleading of the, two Governments
remained undecided but the Attorney-General as well
as the Advocates-General of all the Provinces were
served with notices as required by Rule 1 of Order
XXVIIA, Civil Procedure Code. The Attorney-General
for personal reasons could not appear but he was
represented by the Deputy Attorney-General who
together wish the Advocates-General of the Provinces
did address the Court on some of the legal issues
which needed consideration by the Court.

10. On behalf of the respondents objections were


raised to the maintainability of the appeals as well as
to the competence of the Election Commission to
hear the references filed by the appellant. It was
contended that section 8-B, Political Parties Act
(hereinafter referred to as the Act) was ultra wires of
the Constitution as it came in conflict with numerous
provisions thereof. The Deputy Attorney-General as
well as the Advocates-General, except the. Advocate-
General of Balochistan, supported the said objections
and stated that section 8-B, ibid, was not a valid law.
The Advocate-General of Balochistan, however;
expressed a contrary opinion.
11. Section 8-B was introduced in the Political Parties
Act, by Act XXI1 of 1985. It came into force on 25-12-
1985. It reads as follows
"8-B, Disqualification on ground of defection, etc.--If a
member of a House?

(a) having been elected as such as a candidate or


nominee of a political party, or

(b) having been elected as such otherwise than as a


candidate or nominee of a political party and having
become a member of a political party after such
election, defects or withdraws himself from the
political party he shall, from the date of such
defection or withdrawal, be disqualified from being a
member of the House for the un-expired period of his
term as such member, unless he has been re-elected
at a bye-election held after his disqualification.

(2) if any question arises whether member oh a louse


has become disqualified under sub-section from
being a member, the question shall, on a reference by
the Leader of, the Parliamentary party concerned, be
determined by? the Election Commission.
An appeal against a decision of the Election
Commission under subsection shall lie to the
Supreme, Court. within thirty days of the decision? ~

Explanation? In this section `House means a House,


ref the Majlis-cloora (Parliament) and include?? a
Provincial Assembly:

It was subsequently amended lay a number of


Ordinances, but these Ordinances were allowed to
expire. The Ordinances in question are No.X of 1990,
No; VIII of 1991, No. XXIII of 1992 No.XXX of 1993. It
may be mentioned that or, the day when the
,assembly met in response to the notice given by the
Opposition 1 "or the consideration of the resolution
for the vote of no-confidence, nine of the Ordinance
just cited was in force. Learned counsel for both sides
agreed that on its expiry of the amending Ordinance;,
section 8-Fi as initially enacted iii Act XXII of 083 re-
emerged in its original form. This legal position stated
by the learned counsel is in conformity with the view
taken by this Court in a number of cases. See
Government of Punjab G. Zia Ullah Khan (1992 SC'MR
6d); Mohammed Arif v. State (133 SCMR 158); and
Sabir Shah v. Federation of Pakistan (PLD 14 SC 738).
The Lahore High Court, too, in via l:.Tllah Khan v.
Government of Punjab (PLD 28Lahore 554) has come
to the same conclusion.

12. How ever, during the course of the arguments


same of cur brothers expressed the view that the
expiry of the amending Ordinances referred to above
aid not have the effect of reviving the original text of
section 8-1 of? the Act. In this context reference teas
made to the language of Articles 89(2) and `(a) of the
Constitution and it was observed that under Article
8() an Ordinance which had expired was to be treated
as if it had been repealed and by operation of Article
64 of the repeal of are Ordinance could not have the
effect of reviving anything riot ire force or existing at
the tune when the repeal took effect; consequently,
the original text of are Ordinance which had been
amended would not stand evidence can the expire of
the amending Ordinance. In i rah' opinion this
argument is not tenable. The power of legislation
enjoyed by the President under Article 5 is of a
temporary nature anal the Constitution itself fixes the
maximum period during which an Ordinance carp
remain alive. Article 26 is intended to be an aid to
interpretation; the ambit of clause (a) of this Article
which essentially relates to past and closed
transactions cannot be enlarged so as to have the
effect of extending the life of a temporary piece of
legislation beyond the period specifically fixed by the
Constitution. The Constitution vests the legislative
power of the Federation exclusively in the Parliament;
to make the President a co-sharer in that power in
leis own right, except for a short period, is clearly not
permissible. It is to be noticed, as its principal clause
indicates, Article 264 cannot be construed in a
manner that would defeat or render ineffective the
apportionment'- of? State power, as envisaged by the
Constitution, among the various organs thereof. It is
therefore, erroneous in my opinion to contend that
even though the maximum -life of an Ordinance is
fixed by the Constitution, yet, by operation of clause
(a) of article 264 which is intended to protect past
and closed transactions, an expired Ordinance is to be
taken to have left a permanent scar on the statute
book.
13. , During the course of the hearing of 'these
appeals a doubt was cast on the competency of the
Election Commission to examine the vires of section
8-B of the Act by reason of its conflict with different
provisions of the Constitution. It was argued that the
Election Commission could not pronounce upon the
validity of the very Act which had created the
jurisdiction in it to entertain and decide the
references made under subsection (2) thereof. In my
opinion it is -unnecessary to go into this part of the
controversy arising between the parties for we-too
were invited to pronounce upon the vires of the said
section. I may add that even though while hearing
these appeals this Court is exercising a jurisdiction
created in it by section 8-B(3) of the Act, yet, in my'
opinion, this fact does not preclude it from examining
its validity. The reason is not far to seek. This Court is
the highest judicial tribunal in the country and against
its decision there is no remedy available to an
aggrieved party. If any limitation is imposed upon it
with regard to the legal questions that may be raised
before it when it is hearing an appeal, a party may be
left without a forum where it can agitate vital
questions affecting the merits of its case. Apart from
that the Judges of the Court are under an oath to
preserve, protect and defend the Constitution.
Therefore, they cannot decline to strike down a law l
which is violative of the Constitution.

14. Section 8-B, as it stands, not only provides a


penalty against defection or withdrawal but also
creates the forum where the penalty may be
enforced. It was contended by Mr. Sharifuddin?
Pirzada that the prohibition against defection or
withdrawal as set out in this section was an
unjustifiable clog on, the right of the member of an
Assembly to follow the dictates of his conscience and
was for that reason un-Islamic; further, it violated
many provisions of the Constitution, such as Article
2A, which has made the Objectives Resolution a
substantive part of the Constitution Article 4 which
inter alia declares that to enjoy the protection of law
is the inalienable right of citizens; Article 14, which
provides protection against violation of the dignity of
man; Article -18, which guarantees freedom of
association and freedom of choice in political action
and thought; Article 66 which assures the members of
the Assembly freedom of speech and vote in the
Assembly; and, Article 63 which. sets out the
disqualifications which the members of an Assembly
must not incur and the manner as well as the forum
for their enforcement.

15. On the question of the competency of the


Election Commission to hear the references under
section 8-B(2) it was contended on behalf of the
respondents that the Constitution had itself in Article
63(2) designated the Chief Election Commissioner as
the authority to decide the controversy relating to
the disqualification of a member of an Assembly and
that the jurisdiction conferred upon him in this regard
could not be transferred to any other body or person
through sub-Constitutional legislation consequently,
sub?section (2) of section 8-B which empowered the
Election Commission to pronounce upon the, said
controversy and subsection (3) thereof which
provided an appeal to the Supreme Court from the
decision of the Election Commission, suffered from
infirmity on account of conflict with Article 63(2), ibid.
In the circumstances, neither the Election
Commission was competent to entertain the
references made by the appellant nor were his
appeals maintainable before this Court.

16. It seems difficult to subscribe to the contention


raised on behalf of the respondents. Section 8-B(2)
has already been reproduced above. Article 63(2) is in
the following terms:

"If any question arises whether a member of the


Majlis-e-Shoora (Parliament) has become disqualified
from being a member, the Speaker or, as the case
may be, the Chairman shall refer the question to the
Chief Election. Commissioner and, if the Chief Election
Commissioner is of -the opinion that the member has
become disqualified, he shall cease to be a member
and his seat shall become vacant."
By virtue of Article 127 of the Constitution this-
provision is also applicable to the members of a
Provincial Assembly.

16-A. The argument that as Article 63(2) has itself


designated the forum for enforcement of
disqualifications against the members of an Assembly
no sub-Constitutional legislation can provide a
different one does appear to be attractive but on
closer examination it must be rejected. It is to be
noticed that Article 63(2) of the Constitution is in the
nature of a protection given to the members of an
Assembly that no authority lower than that of Chief
Election Commissioner would deprive them of their
membership. Any law which impinges upon that
protection will no doubt be invalid; but then,
subsections (2) and (3) of section 8-B do not detract
from that protection; on the other hand, they
reinforce it by raising the level of the forum where
the question of their disqualifications should be
decided, that is, from the Chief Election
Commissioner to that of the Election Commission
which comprises the -Chief Election Commissioner
and two Judges of the High Court. They further
strengthen the protection by providing a right of
appeal to the highest judicial tribunal of the country.
It is to .be noticed that among the disqualifications
specifically mentioned by clause (1) of Article 63
defection or withdrawal from a political party is not
included. Whether the Parliament could lawfully add
to the list of disqualifications is a question which I
shall presently examine. However, that may be, if,
when creating a new ground for disqualification the
Parliament in its wisdom decided to raise the level of
the forum where the said penalty should be enforced
it cannot be said to have undermined the protection
given by Article 63(2) of the Constitution to the
members :--Thus, there is no conflict between
subsections (2) and (3) of section 8-B and the said
clause of the Constitution.

17. The question whether the Parliament was


competent to add to the list of disqualifications by
sub-Constitutional legislation may now be examined.
Prior to the Eighth Amendment, Article 63(1) read as
follows:

"A person shall be disqualified from being elected or


chosen as, and from being, a member of Parliament,
if -

(a) ?????????? he is of unsound mind and has, been


so declared by a competent Court: or

(b) ?????????? he is an undischarged insolvent; or


(c) he ceases to be a citizen of Pakistan, or acquires
the citizenship of a foreign State; or

(d) ?????????he holds any office of profit in the


service of Pakistan other than an? office declared by
law not to disqualify its holder; or

(e) ?????????he is so disqualified by Act of


Parliament."

18. The Eighth Amendment to the Constitution


replaced clause(1) of Article 63 and provided a long
list of disqualifications. After the amendment the said
clause reads as follows:

"A person shall be disqualified from being elected or


chosen as, and from being, a member of the Majlis-e-
Shoora (Parliament), if--

he is of unsound mind and has been so declared by a


competent Court; or
he is an undischarged insolvent; or
(c)? ???????he ceases to be a citizen of Pakistan, or
acquires the citizenship of a
?????????????????foreign State; or,

(d) ?????????? he holds an office of profit in the


service of Pakistan other than an? office declared by
law not to disqualify its holder; or

(e) ??????????he is in the service of any statutory


body or anybody which is owned or controlled by the
Government or in which the Government has a
controlling sharp or interest; or

(f) ???????????being a citizen of Pakistan by virtue


of section 14-B of the Pakistan Citizenship Act, 1951
(II of 1951), he is for the time being disqualified under
any law in force in Azad Jammu and Kashmir from
being elected as a member of the Legislative
Assembly of Azad Jammu and Kashmir; or

(g) ??????????he is propagating any opinion, or


acting in any manner, prejudicial to the Ideology of
Pakistan, or the sovereignty, integrity or security of
Pakistan, or morality, or the maintenance of public
order, or the integrity or independence of the
judiciary of Pakistan, or which defames or brings into
ridicule the judiciary or the Armed Forces of,
Pakistan; or he has been, on conviction for any
offence which in the opinion of the Chief Election
Commissioner involves moral turpitude, sentenced to
imprisonment for a term of not less than two years,
unless a period of five years has elapsed since his
release; or

(i) ????????????he has been dismissed from the


service of Pakistan on the ground of misconduct,
unless a period of five years has elapsed since his
dismissal; or

(j) ????????????he has been removed or


compulsorily retired from the service of Pakistan on
the ground of misconduct unless a period of three
years has elapsed sine his removal or compulsory
retirement; or

(k) ??????????he has been in the service of Pakistan


or of any statutory body or any body which is owned
or controlled by the Government or in which the
Government has a controlling share or interest,
unless a period of two years has elapsed since he
ceased to be in such service; or

(1) ??????????he is found guilty of corrupt or illegal


practice under any law for the .time being in force,
unless a period of five years has elapsed from the
date on which that order takes effect; or

(m) ?????????he has been convicted under section 7


of the Political Parties Act, 1962 (111 of 1962), unless
a period of five years has elapsed from the date of
such conviction; or Provided that the disqualification
under this paragraph shall not apply to a person:?

(i) ????????????where the share or interest in the


contract devolves on him by inheritance or succession
or as a legatee, executor or administrator, until the
expiration of six months after it has so devolved on
him;

(ii) ????????????????????????????where the


contract has been entered into by or on behalf of a
public company as defined in the Companies
Ordinance, 1984 (XLVII of
?????????????????1984), of which he is a
shareholder but is not a director holding an office of
profit under the company; or

(iii) ?????????where he is a member of a Hindu


Undivided Family and the contract has been entered
into by any other member of that family in the course
of carrying on a separate business in which he has no
share or interest; or

Explanation.-- In this Article `goods' does not include


agricultural produce or commodity grown or
produced by him or such goods as he is, under any
directive of Government or any law for the time being
in force, under a duty or obligation to supply.

(o) ????????????????????????????he holds


any office of profit in the service of Pakistan other
than the following offices, namely:-?

(i) ??????????????????????????????an office


which is not whole time office remunerated either by
salary or by fee;
he, whether by himself or by any person or body of
persons in trust for him or for his benefit or on his
account or as a member of a Hindu Undivided Family,
has any share or interest in a contract, not being a
contract between a Cooperative Society and
Government, for the, supply of goods to, or for the
execution of any contract or for the performance of
any service undertaken by Government:

(ii) ????????????????????????????the office of


Lumbardar, whether called by this or any other title;

(iii) ?????????the Qaumi Razakars;

(iv) ?????????any office the holder whereof, by


virtue of such office, is to be called up for military
training or military service under any law providing
for the constitution or raising of a Force; or

(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."
It was contended on behalf of the respondents that
under sub-clause (p), ibid, the Parliament could add
to the list of disqualifications in respect of pre
election matters only and that it did not empower it
to create a disqualification' with regard to a sitting
member. A view was also expressed to the effect that
as the Parliament had set down the disqualifications
at great length therein ii intended clause (1) to be
exhaustive on the subject. A superficial answer,
though of doubtful validity, to these arguments may
be that the Parliament which enacted the Eighth
Amendment was also responsible for introducing j
section 8-B in the Political Parties Act; therefore, it
did not regard the list of disqualifications set out in
Article 63(1) to be an exhaustive one. However, that I
may be, in my opinion, the source of the power of the
Parliament to enact section 8-B is not sub-clause (p),
ibid, but Item 41 of the Federal Legislative List, Part I,
which enables it to make laws relating to elections to
the National and Provincial Assemblies and the
Senate. It need hardly be added that defection or
withdrawal from the political party on whose ticket a
member has been returned to the Assembly is in the
context of the political situation in our country a
fraud on the electorate, generally, and on hundreds
of workers of the political party, specially, who had
assisted him during the election and manned his
election camps on the polling day. It vitiates the
electoral processes and leaves the voter in a state of
complete helplessness. It is, therefore, for this reason
that both major political parties in the country,
namely, the Pakistan People's Party and the Pakistan
Muslim League (Nawaz Group), in their manifestos
had expressed themselves against'
defection/withdrawal of members elected on the
ticket of a political party; thus, the relevant part of
the manifesto issued by the Pakistan People's Party in
1993 reads as follows

"The Political Parties Act will be made effective to


ensure an end to floor-crossing and horse-trading so
that once elections are over a letter from the Leader
of the Parliamentary Party will automatically
disqualify a member."
Similarly, the, relevant extract from the election
manifesto of the Pakistan Muslim League (Nawaz
Group) issued in 1993 is in the following terms

"To firmly establish democratic institutions and


healthy traditions so that all future changes of
Government take place only through periodic
elections, floor-crossing by elected representatives
are prohibited and the elected opposition is given full
recognition to play its due role in the National
Parliament and Provincial Assemblies..."

There can be no doubt that the Parliament can make


laws under Item 41, ibid, which would lend credibility
to the election and save the constituents from being
hoodwinked by unscrupulous candidates. There is a
very close nexus between defection/withdrawal and
the elections to the Assemblies and the Senate.

19. On behalf of the respondents a detailed argument


was addressed to the effect that election of a
member to the Assembly on the ticket of a political
party ought not to stand in his way from following the
dictates of his conscience; it would be morally wrong
for a member to support his party even when he was
convinced that the latter was wrong or when he
seriously believed that the stance taken by it was not
in the best interest of his country. Copious references
were made to the works published by distinguished
authors where restraints on the freedom of a
member to act in accordance with his honest beliefs
were deprecated. It is unnecessary to refer to those
works, for, as Kayani, J. (later, CJ.) once remarked `let
our fondness for drawing parallels be subdued for
once'. In our country defection or withdrawal. by a
member from his political party is not influenced by
the best of motives; on the other hand the
consideration for doing so is often of a sordid nature.
The lure of an exalted office or even money is
sufficient to subvert the loyalty of a member'.
Fortunately, the number of such members is small;
even then it is not infrequently large enough to
disstabilize the entire political set-up and thus make
the people lose faith in the system of Government
that we have adopted for ourselves. In the
circumstances, if the Parliament has chosen to make
a law to curb the, evil of defection or withdrawal
which is eroding away the very fabric of our
democracy it cannot be accused of placing clogs on
the conscience of the members.

?20. The contention. that the law discouraging


defection or withdrawal is un-Islamic has amused me.
Islam places great emphasis on the Muslims keeping
their word. My learned brothers, Ajmal Mian and
Saeeduzzaman Siddiqui, JJ., have quoted several
Ayats from the Holy Qur'an and some Ahadiths on the
subject I need not burden my note by reproducing
the same As already pointed out, a member who has
been elected to the Assembly by holding out to his.
constituent that he belongs to a political party and
subscribes to a particular manifesto can hardly be
said to be acting in accordance with the true Islamic
tradition if after winning the election he switches his
support to another political party with a different
manifesto solely with the object of making some
petty mundane gain.

21. It was argued on behalf of the respondents that


under Article 17(2) of the Constitution every citizen
had the right to be a member of any political party
and as section 8-B of the Act placed a check on this
right it was ultra vires of the said Article. This
contention is again misconceived. The said Article
cannot be so construed as to permit a member to
commit fraud upon his constituents. Section 8-B does
not stand in the way of a member from subscribing to
any political party or view. It only prevents him from
changing his political colour which would leave the
majority of the voters in his constituency without
proper representation in the Assembly; it does not
bar him from seeking fresh election on the basis of his
altered political views or loyalty.

22. It was also contended on behalf of the


respondents that under Article 66 of the Constitution
a member enjoyed complete protection from action
of any kind in respect of what he stated in the
Assembly or in respect of the manner in which he
voted; as section 8-B detracted .from that protection
it was in conflict with the said Article. This contention
is again misconceived. The allegation of defection or
withdrawal may be established against a member
independent of the manner in which he votes in the
Assembly or the views he expresses therein; in fact, in
the appeals before us the charge of
defection/withdrawal levelled against the
respondents is not based upon any speech made or
vote given by them in the Assembly. It cannot
therefore be said that section 8-B is bad because it
impinges upon the protection given to a member
under Article 66 of the Constitution. '

23. I am, therefore, of the view that section 8-B of the


Act is a valid piece I of legislation and the appeals
preferred by the appellant before this Court are
competent.
(Sd.)
SAAD SAOOD JAN, J.

`' AJMAL MIAN, J.--- The above two appeals have


lyceum dismissed on 16-11-1994 as incompetent by
majority of seven to five, the learned Judges it
support of their respective view had given, short
reasons on the above date. These appeals were filed
by Sabir Shah, appellant, under section S-B of the
Political Parties Act, 1962, hereinafter referred to as
the Act, against the majority judgment, dated 5-5-
1994 of the Election Commission, whereby references
filed by the appellant against the two respondents
under subsection (2) of section 8-B of the Act were
dismissed

I am a party to the above minority view. I wish to


record my own reasons in support thereof as the
above appeals involve very important questions 'of
law having far reaching consequences.

2. The brief facts are that P.M.L.(N.) was abie to witj


15 seats in N.-W.F.P. Assembly, hereinafter referred
to as the Assembly, in the General Elections of 1993.
The two respondents, Shad Muhammad Khan (in Civil
appeal No.381 of 19934) and Akhtar Hussain Shah (in
Civil Appeal No.382 of 1994) were among the
returned candidates who had contested and won the
elections on P.M.L.(N.)'s tickets. Respondent Shad
Muhammad Khan was elected as the Deputy Speaker
of the Assembly. The appellant formed the Ministry in
the N.-W.F.P. Province with the support of his party
members, members of A.N.P. and some independent
members. Respondent Akhtar Hussain Shah was
appointed as a Minister in the Provincial Cabinet by
the appellant. `fhe Pakistan People's Party (P.P.P.)
was the opposition party in the House, whose leader
was Mr. Aftab Ahmed Khan Rherpao. It is the case of
the appellant that immediately after the lorrriaciOn
of the Ministry by him, P.P.P. started to make
endeavours to win over the support. of the members
of the Assembly through horse-trading, bribery
corrupt and illegal means. It is also the case of the
appellant that P.P.P. in its' above efforts succeeded to
purchase the loyalties of some of the members of the
Assembly. After that it gave notice for `no-confidence
motion' against the appellant on 3-2-1994. It is also
averred by the appellant that in order to resist the
above `no confidence-motion', 'P.M.L.(N.) summoned
certain meetings of its Parliamentary party. It has also
been averred by the appellant that the Parliamentary
party of P.M.L.(N\) received information that
respondents Shad Muhammad Khan and Akhtar
Hussain Shah had been won over by the opposition
and that these-members were going to support the
opposition in the `no-confidence motion' against the
appellant. It has been further averred that the
Parliamentary party of P.M.L.(N.) convened, meetings
in which the above two respondents were also called
but they avoided the same Eventually on 22-2-1994,
both were disqualified front being members of the
Assembly in terms of subsection (1) of section 8-8 of
the Act The intimation to that effect was conveyed to
the Speaker of the Assembly. It has also been averred
that on 23-2-1994, which was the date fixed for
voting upon the above `no-confidence motion', on a
point of order by one of the members of P.M.L.(N.),
the Speaker of the Assembly gave his ruling that both
the above respondents were strangers in the House,
and they were directed to leave the house. Upon
then above ruling, the opposition raised hue and cry
and it did not vote upon the `no-confidence motion'
after the Speaker put the motion to the House.
According to the appellant, thus it was dropped and
subsequently the House was adjourned.

3. It appears .that on 23-2-1994, early in the morning,


the two respondents had filed two writ petitions,
namely, Writ Petitions Nos.230 and 231 of 1994 inter
alia against the Speaker alleging therein that they
were apprehensive of the fact that the Speaker would
not. allow them .to discharge their functions as
members of the Assembly. An application for an
interlocutory relief was also filed for restraining the
Speaker from interfering with the respondents' above
right to act as the members of the Assembly. The
above interlocutory application was granted by the
majority of the Full Bench by an order, dated 28-2-
1994 in the following terms:--

"By majority of judgment C.M. is accepted and stay i5


granted. The alleged order of disqualification of the
writ petitioner by the Parliamentary Party of Pakistan
Muslim League Nawaz Group under its Leadership of
Syed Sabir Shah, Chief Minister (respondent No.1) to
its meeting held on 22nd February, 1994 followed by
the Ruling of the Speaker in the Provincial Assembly
on 23rd of February, 1994 are hereby suspended. The
membership of the writ petitioner shall remain intact
till the decision of the main writ petition. Writ
petition is to be fixed. for hearing at the earliest."

The above order was set aside. by this Court upon


Civil Petitions Nos.9 'and 9 t of 1994 filed by the
Speaker of the Assembly and Civil Petitions Nos.98
and 99 of 1994 filed by the appellant by converting
the same into appeals vice judgment, dated 10-3-
1994 and remanding the case to the High Court for
disposal of the main petitions.
It appears that after the above remand order of this
Court, the parties settled the matter. Messrs M.
Sardar Khan and Mian Saqib Nisar, Advocates for
respondents Nos.l to 6 and respondents Nos.3 to 5
and 7 to 14 respectively made following statement:--

"We make statement at the bar that since on the


move of the Leader of the Parliamentary Party,
Pakistan Muslim League (Nawaz Group) (respondent
No.1) the matter is pending before the Election
Commission/Chief Election Commissioner of Pakistan
vis-a-vis the disqualification of the writ petitioners
and that in furtherance thereof they may make a
formal proper reference, if any, immediately to the
said forums, the Parliamentary Party of Pakistan
Muslim League (Nawaz Group) have, therefore,
decided to withdraw their decision vis-a-vis the
disqualification of the writ petitioners provided the
writ petitioners and tire Government of N.-W.F.P. to
be represented by the Advocate-General make a
statement and give an undertaking that in lieu of our
offer restoring the membership of the writ petitioners
they shall not convene the session of the Provincial
Assembly till the decision of the references/matters
by the Election Commission/Chief Election
Commissioner. We further undertake to participate in
the proceedings before the Election
Commission/Chief Election Commissioner on day to
day basis for expeditious disposal of the matters."

Whereas Mr. Iftikhar Hussain Gillani, learned counsel


for the respondent No.2 (i.e. the Speaker of the
Assembly) made the following statement:--

"I have . heard the statement of the counsel of the


leader of Parliamentary Party (P.M.L.) Nawaz,Group
and the members of the Parliamentary Party (P.M.L.)
Nawaz Group and I agree to the said statement in
toto. Since I had given a ruling vis-a-vis the
disqualification of the writ petitioners on the strength
of the decision of the Parliamentary Party and since
the Parliamentary Party has since withdrawn its
decision, I also, therefore, withdraw my ruling."

Messrs Syed Sharifuddin Pirzada, Shahzad Jehangir;


Iftikhar Ahmed and Qazi Muhammad Jamil on behalf
of the petitioners and Mr. Nasirul Mulk, the then
Advocate-General, N: W.F.P. on behalf of the
Governor made statements as under:--

' "Statement filed on behalf of the petitioners in the


aforesaid writ petitions in the High Court:

We have heard the statement of the counsel for the


respondents. We accept the offer made in their
statements. Our writ petitions may be disposed of in
terms thereof. We undertake that till the decision of
the matters/references to the Chief Election
Commissioner/Election
Commission we will not participate in any session of
the Provincial Assembly."

Statement filed on behalf of the Governor, N: W.F.P.:

???????????????????????????????????????????
???????I -

"I have obtained instructions from the Governor, N:


W.F.P, and I give an undertaking on his behalf that
there will not be convened a session of the Provincial
Assembly till the decision of the matters/references
made by the respondents or to be immediately made
by the Election Commission/Chief Election
Commissioner."

The above statements duly signed by the above


learned counsel were accepted by the Full Bench
headed by the learned Chief Justice and the same
were also signed by them. The aforesaid writ
petitions were disposed of through the judgment,
dated 21-3-1994, the relevant portion of which reads
as follows:--

"The Advocate-General representing the Governor of


the Province has made a statement that till the
decision of the matters/references by the Election
Commission/Chief Election Commissioner about the
disqualification of the writ petitioners no session of
the Provincial Assembly shall be convened.

Consequently we shall dispose of the writ? petitions


that the decision/ruling of the respondents about the
disqualification of the writ petitioners have been
withdrawn and the membership of the writ
petitioners stand restored The matters/references
filed before the Election Commission/Chief Election
Commissioner or further formal or proper, references
if any made immediately about the disqualification of
the writ petitioners before the Election
Commission/Chief Election Commissioner shall be
attended to by the parties on the basis of day to day
hearing and due to the urgency of the subject-matter
we would request the Honourable Chief Election
Commissioner for the expeditious disposal of the
references/matters by day to day hearing. Parties are
left to bear their own costs:"

5. The appellant filed the aforesaid two references


under section 8-B of the Act before the Commission
on 29-3-1994 separately against the above two
respondents. He also got filed a reference under
clause (2) of Article 63 of the Constitution of the
Islamic Republic of Pakistan, 1973, hereinafter
referred to as the Constitution, on 30-3-1994 before
the Chief Election Commissioner against the
respondents through the Speaker of the Assembly.

6. It will not be out of context to mention that on 25-


2-1994 the President of Pakistan issued a
Proclamation, whereby the Provincial Assembly was
suspended, the appellant and his Cabinet were
dismissed and the Governor was directed to assume
the functions of the Provincial Government on behalf
of the President. The above action was impugned by
the appellant through Constitution Petition No.12 of
1994 in this Court, which was disposed of by a short
order, dated 21-4-1994 in the following terms:-- '

"The Court by majority of (7 to 2) is of the view that


the Proclamation issued by the President to the
extent it purports to declare that the Chief Minister
and his cabinet shall cease to hold office beyond the
period of currency of the proclamation, is in excess of
the power conferred on the President under? article
234 of the Constitution of the Islamic Republic of
Pakistan. It is? accordingly held that on the revival Lt
the Provincial Assembly on the 'lapse of the
Proclamation the Chief Minister and his cabinet will
also stand revived. It is however, clarified that it will
be open to the (Governor to refix a date and time. in
accordance with Article 130(5) of the Constitution
requiring the Chief Minister to obtain a vote of
confidence from the Assembly. The petition is
allowed to the above extent with no order as to
costs."

?????????????????7. ' it appear that the


Governor c' erred the meeting, of the Assembly for
24-4-1994 at 9-00 a.m. and the appellant was
directed by the Governor through his letter, dated 23-
4-1994 addressed to him to obtain vote of
confidence_ The appellant contested the legality of
the Governor's above action and pointed cut that the
same was in breach of the above undertakings given '
by the Governor in the High Court and violation of the
above order of this Court. Consequently, the
appellant and his supporters did not attend the above
session of the Assembly. After that, Mr. Aftab Ahmed
Khan Sherpao was inducted as the Chief Minister. He.
formed his Ministry which was? impugned by the
appellant through Constitution Petition No.28 of
1994, dated 2-5-1994 filed in this Court under Article
184(3) of the Constitution, which? as admitted on 8-
5-1994 for regular hearing and the same was fixed
for? 1-6-1994 for regular hearing at Islamabad.
8.?? The above references were resisted inter alia by
the respondents inasmuch as detailed written
statements were fled, in which inter alia it was
pleaded that section 8-B of the Act was ultra vires the
Constitution. It was also averred that the references
were not competent.

9. On the basis of pleadings of the parties in the


above references under section 8-B of the Act, the
following eight issues were framed:--

(1) ??????????Whether section 8-B of the Political


Parties Act, 1962 is ultra vires the Constitution and
repugnant to the Injunctions of Islam? O.P.R.

(2) ??????????Whether the references are


incompetent, misconceived, mala fide and not
maintainable? O.P.R.

(3) ????????????????????????????What is the


effect of the withdrawal of the decision by the
Parliamentary Party? O.P.R.
(4) _ What is the effect of the withdrawal of the ruling
of the Speaker? O.P.R.

(5) ????????????????????????????Whether
the respondents have defected from Pakistan Muslim
League
?????????????????(Nawaz Sharif Group), if so,
what is its effect? O.P.P.

(6) ??????????Whether the respondents' have


become disqualified from being members of the
Provincial Assembly of N.-W.F.P., if so, from what
date? O.P.P.

(7) ??????????Whether the Election Commission of


Pakistan has jurisdiction to determine the vires of
section 8-B of the Political Parties Act, 1962? O.P.P.

(8) ??????????? Relief."

Whereas in the reference under Article 63(2) of the


Constitution filed against the respondents, the
following two issues were framed:--
(1) ????????????????????????????Whether
the reference, dated 30th March, 1994 before Chief
Election Commissioner is competent?

(2) ????????????????????????????Whether in
view of the order passed by the Peshawar High Court
on 21st March, 1994, this reference still subsists?"

10. The evidence was recorded in the above


references. The Election Commission, which consisted
of the Chief Election Commissioner and two learned
Judges of the High Courts as Members, after hearing
the learned counsel for the parties, disposed of the
above two references through the aforesaid majority
judgment, dated 5-5-1994. The two learned Members
of the Commission in their majority opinion while
discussing above issues Nos.5 and 6 held that the
proceedings under section 8-B of the Act were of
quasi-criminal nature and, therefore, every elected
representative would be deemed to have not been
defected unless proved to the hilt that he had in fact
defected. After appraisal of the evidence brought on
record, they held that the appellant failed to prove
the factum that the above two respondents had
defected and, therefore, dismissed the above
references. While dealing with Issue No.2, it was held
by them that no material on the file was brought to
show that the two references were incompetent or
that they were misconceived or not maintainable. It
was also held that the plea of mala fide had not been
proved.
It may be observed that while dealing with Issues
Nos.l and 7, it was held by them that the Election
Commission would have no jurisdiction to determine
the vires of section 8-B of the Act.
11. ????????????????????????????The learned
Chief Election Commissioner, Mr. Justice (Retd.)
Naimuddin, in his dissenting note while dealing with
Issues Nos.l and 7, held that the issues of vires could
be finally decided by the superior Courts and not by
the Election Commission. Under Issue No.2, he held
that the references were competent and
maintainable and there was no mala fide nor they
were misconceived. Whereas under Issue No.3, he
held that withdrawal of the decision by the
Parliamentary party for disqualifying the respondents
had no effect on the two references . He also held
under Issue No.4 that withdrawal of the ruling of the
Speaker of N.-W.F.P. was also of no effect on the
above references. As regards imbues Nos.5 and 6, he
held that the standard of proof would not be in
accordance with the strict proof or proof beyond
reasonable doubt but the rule applicable would be as
laid down in civil matters in accordingly, with the
provisions of Article 2(4) of the Qunan-e- Shahadat,
1984. He further held that the appellant was able to
prove the allegation of defection against the
respondents on the basis of above standard of proof.
tie was further of fife view that even otherwise the
rule of strict proof vas satisfied in the present cases
on the basis of the material available on record.
Thereupon, the appellant filed the above two
appeals.

12. The above reference under Article 63(2) of the,


Constitution was' disposed of by the Chief Election
Commissioner, alone- by judgment, dated 5-5-1994,
in which he accepted the respondents' contention
that the same was not competent. The operative
portion of the judgment reads as follows.--
"It may be noted that such a clause is not provided in
Article 63 of the constitution. Therefore, after he has
been elected, he can be disqualified only on any of
the grounds mentioned to Article 63(1) of the
Constitution or section 99(1-A) of the Representation
of the People Act, 1976 except in cases falling under
section 8-B of the Representation of the People Act,
1962.".

No petition for leave to appeal was filed by any of the


parties against the above judgment and, therefore,
the above judgment has acquired finality.

13. Reverting to the present two appeals, ..it may be


observed that the same came up for Katcha Peshi on
15-5-1994 before a Bench comprising the then Acting
Chief Justice Saad Saood Jan, Abdul Oadeer Chaudhry,
Ajmal Mian, Sajjad Ali Shah anal Muhammad Rafiq
Tarar, JJ. and the same were admitted for regular
hearing. The learned counsel for the appellant
pressed for an interlocutory order upon their stay
application for restraining the respondents from
acting as members, as it was submitted that because
of the above illegal two votes Mr. Sherpao was
running the Government, but his above request was
declined. The two appeals were fixed for regular
hearing for 11-6-1994 i.e. on the date on which the
above Constitution Petition No.8 of 1994 was already
fixed. It was observed by the then learned Acting
Chief 'justice that to case the appellant's counsel
would wish to proceed first with the above two
appeals on 11-6-1994, lie would be allowed. It seems
that the learned Attorney-General filed an application
dated 6-6-1994 in above Constitution Petition No.28
of 1994 for adjournment on the ground that he was
heavily pre-occupied. Since he was not appearing in
the above two appeals, he did not seek adjournment
of the same. On the above application the office put
up -a note, in which it was stated that the above
Constitution Petition No.28 of 1994 was fixed with
aforesaid two Civil Appeals for 11-6-1994 and that the
learned Attorney-General had sought adjournment.
The matter was placed before the learned Chief
Justice on 7-6-1994, when the above application was
granted with the result that Constitution Petition
No.28 of 1994 and the above two appeals were
adjourned to a date to be fixed by the office.
Thereupon, the appellant's A.C.R. filed an application
on 15-6-1994 praying that the above appeals be
heard before the summer vacation. This was followed
by an application by the appellant on 12-7-1994,
wherein it was prayed that the appeal be heard in the
month of July, 1994. However, the learned Chief
Justice vide his order, dated 27-6-1994 directed that
the appeals be fixed for hearing at Islamabad in the
first week after re-opening of the Court after summer
vacation.

14. The above appeals came up for hearing on 19-10-


1994 when the respondents filed two miscellaneous
applications under Rule 6, Order XXXIII read with Rule
1, Order XXIX of the Supreme Court Rules read with
Order XXVII-A, C.P.C. for impleading the Federation of
Pakistan and the Province of N: W.F.P. in the above
two appeals and for issuance of notices to the
Attorney-General and the Advocate-General, N.-
W.F.P. under Order XXXVII-A, C.P.C. Upon the above
applications, notices were issued on the above date
23-10-1994 to the learned Attorney-General and the
learned Advocates-General of the four Provinces to
assist the Court on the question of vires of section 8-B
of the Act.
15. Mr. Iftikhar Gilani, learned A.S.C. completed the
facts and formulated his submission by the tea break
on 23-10-1994 when Mr. Syed Sharifuddin Pirzada
requested the Court to hear the question of vires of
section 8-B of the Act. He was allowed to make his
submissions on the above point.

16. Mr. Syed Sharifuddin Pirzada, learned Senior


Advocate Supreme Court appearing for the
respondents, has urged as under:--

(i) ??????????????????????????????That the


Commission was competent to go into the question
of vires of section 8-B of the Act;

(ii) ??????????in the alternative, this Court being


the apex Court, has wider powers while hearing an
appeal and, therefore, it is competent to examine the
above question;

(iii) ?????????that section 8-B of the Act is in fact


ultra vires the provisions of the Constitution and,
therefore, references filed by the appellant under the
aforesaid provision were liable to be dismissed; and

?(iv) ???????that even otherwise in view of clause (2)


of - Article 63 of the Constitution which provides a
reference to the Chief Election Commissioner on the
question of disqualification, the above two references
under section 8-B(2) of the Act were misconceived
and incompetent.

Mr. Faqir Muhammad Khokhar, the learned Deputy


Attorney?General; who appeared on behalf of the
learned Attorney-General, besides adopting
arguments of Mr. Sharifuddin Pirzada urged that
section 8-B of the Act is violative of Article 25 of the
Constitution being discriminatory.

Mr. Abdus Sattar Najam, learned Advocate-General,


Punjab, who appeared for the Province of Punjab,
made submissions on his own behalf and on behalf of
the learned Advocate-General for the Provinces of
Sindh and N.-W.F.P. besides adopting the arguments
of Mr. Syed Sharifuddin Pirzada, and contended as
under:--
(i) ????????????That since sub-clause (p) of clause
(1) of Article 63 of the Constitution relates to pre-
election period, the Legislature was not competent to
enact section 8-B of the Act;

(ii) ??????????that under Article 17(2) of the


Constitution, no law containing restrictions on the
right of a member of the Political Party to act as a
member of an Assembly or to vote as such can be
enacted as reasonable restrictions referred to
therein, can be imposed only in respect of two items
i.e. in the interest of sovereignty or integrity of
Pakistan and not for defection and, hence, section 8-B
of the Act is ultra vires.

Mr. Yakoob K. Eusufzai, learned Advocate-General


Balochistan, had adopted a contrary line of
arguments to that of other three learned
Advocates?General on the question of vires of section
8-B of the Act. His submissions were:--
(i) ????????????That. the commission had no
jurisdiction to go into the vires of section 8-B of the
Act;

(ii) ??????????that this Court being the apex Court


has the jurisdiction to examine the question of vires
of section 8-B of the Act; and

(iii) ?????????that on no basis, either on account of


the provisions of the Constitution or because of the
Islamic concept, section 8-B can be declared as ultra
vires.

Mr. Khalid Anwar, learned counsel for the appellant,


leas contended as follows:-

(i) ????????????That the Commission had no


jurisdiction to go into the question of
?????????????????vires of section 8-B of the
Act;

(ii) ??????????that this Court is seized of the matter


under subsection (3) of section R-B of the Act. Under
the above provisions, question of wires cannot be
examined.

However, his further submission was that if this Court


was to invoke Article 184(3) of the Constitution, the
question of vires of section 8-B of the Act with
reference to the enforcement of Fundamental Rights
and not with reference to Article 63(2) or Article 66 of
the Constitution could be examined;

(iii) ?????????that Article 187(1) of the Constitution


is to be read with the restrictions contained in clause
(2) of Article 175 of the Constitution and, therefore,
this Court cannot invoke the provision of clause (1) of
Article 187 if it has not been conferred jurisdiction
under any other provision of the Constitution or law;
and

(iv) ?????????that it is not open to the respondents


to urge that the appellant's above two references
were not competent because of clause (2) of Article
63 after having contended before the Chief Election
Commissioner that above reference under Article
63(2) of . the Constitution was not competent and
having got it dismissed against the respondents.

Mr. Iftikhar Gilani, learned A.S.C. who has also


appeared for the appellant on the question of vires of
section 8-B of the Act, has urged as follows:--

(i) ????????????That since floor-crossing is an evil


which is condemned by all the political parties and
sections of people and as section 8-B was enacted to
eliminate the above evil according to the will of the
people, this Court would not declare it ultra vires on
any technical ground but would press into service the
doctrine of deferment;

(ii) ??????????that the provisions contained in


Article 63 of the Constitution are not of organic
nature but they are of specie of sub-Constitutional
provisions and as the same contain detailed law on
the items covered therein, the other . detailed law on
the subject enacted by the Parliament cannot be
struck down but they are to be read in conjunction.
17. ????????????????????????????I may now
revert to the question, whether the Commission was
competent to go into the question of vires of section
8-B of the Act. Mr. Syed Sharifuddin Pirzada, in
support of his above submission that the Commission
was competent to examine the above question, has
referred to the case of Muhammad Hashim Khan and
others v. Province of Balochistan and others PLD 1976
Quetta 59, the case of Muhammad Asif v. Secretary
to Government of the Punjab, C and W Department,
Lahore and 4 others 1990 PLC (C.S.) 257, the case of
Iqan Ahmed Khwram v. Government of Pakistan and
others PLD 1980 SC 153, the case of IA. Sharwani and
others v. Government of Pakistan through Secretary,
Finance Division, Islamabad and others 1991 SCMR
1041 and the case of Hamayun Saifullah Khan v.
Federation of Pakistan through Secretary, Ministry of
Justice, Parliamentary Affairs, Islamabad and 2 others
PLD 1990 SC 599.

In the above first case, a Division Bench of the


erstwhile High Court of Sindh and Balochistan at
Quetta, while dealing with a number of Constitution
petitions which were filed against the order of
dismissal, removal from service, compulsory
retirement and notification containing seniority list,
observed that since the Tribunal under section 5 of
the Balochistan Service Tribunals Act (V of 1974) is
deemed to be a Civil Court for the purpose of
deciding any civil appeal before it, it will have all
powers under the Code of Civil Procedure, and it will
have jurisdiction as any other Civil Court or Tribunal
to examine, whether or not a law is void by reason of
its conflict with the Fundamental Rights or is
otherwise ultra vices or that the order made is mala
fide.

In the second case, a learned Single Judge of the


Lahore High Court, while dealing with a Constitution
petition filed by a Sub-Engineer of the Buildings
department of the Government of Punjab against his
transfer order, pointed out that Article 212 of the
Constitution excluded the jurisdiction exercisable
under Article 199 and, therefore, the obvious
intention was to exclude the jurisdiction of the High
Court to call an action or proceeding of the nature,
which was the subject-matter of the above
Constitution petition, even on the ground that it was
without lawful authority or that it was without
jurisdiction. It was also observed that it was well-
settled that an administrative Court or Tribunal
established in pursuance of Article 212 of the
Constitution was competent like the Civil Court to
examine, whether or not a law was void by reason of
its conflict with the Fundamental Rights or was
otherwise ultra vices. Reliance was placed on the
above Quetta case and also on some other judgments
including the third case referred to hereinabove.

In the third case, appeals with the leave of this Court


were filed by the employees working in the Telegraph
and Telephone Department against the judgment of a
Division Bench of the High Court of Sindh passed in a
number of Constitution petitions in which the vices of
the rules relating to appointments of Assistant and
Assistant Divisional Engineers in Sindh were
impugned, but the same were dismissed on the
ground that the jurisdiction of the High Court was
barred under Article 212 of the Constitution and the
proper forum to go into the vices of the above
statutory rules was the Service Tribunal. This Court,
while affirming the above judgment of the High
Court, observed as under:--

As to the ground concerning the non-maintainability


of the petition, the High Court has held, and it is also
the case of the petitioner, that the effect of the Rules
is that it has altered the terms and conditions of
service. This being so, the bar of Article 212 of the
Constitution would be applicable with full force as in
that exercise the question of vices of the Rules vis-a-
vis section 25 of the Act would necessarily be
considered. In this behalf the High Court has relied on
the statement of law enunciated in Muhammad
Hashim Khan and others v. Province of Balochistan
and others P L D 1976 Quetta 59 and Fazal Elahi Ejaz
and others v. Government of the Punjab and others
with which I agree."

Whereas in the above fourth report, four Constitution


petitions under Article 184(3) of the Constitution
were filed in this Court directly impugning the
discriminatory treatment meted out to some of the
pensioners in violation of Article 25 of the
Constitution relating to Fundamental Rights by not
granting benefits of the increase in the pension to
some class of pensioners. The Federation objected to
the entertainment of the above Constitution petitions
by this Court on the ground that the same were
barred under Article 212 of the Constitution. This
Court, while rejecting the above contention, deduced
the following principles of law from the case-law
referred therein:--

"10. From the above-cited cases, it is evident that it


has been consistently held inter alia by this Court that
a Civil servant if is aggrieved by a final order, whether
original or appellate, passed by a departmental
authority in respect of his terms and conditions, his
remedy, if any, is by way of as appeal before the
Service Tribunal even where the case involves vices of
a particular Service Rule or a Notification or the
question, whether an accused civil servant can claim
the right to be represented by a counsel before the
Enquiry Officer. We are inclined to hold that if a
statutory rule or a Notification adversely affects the
`terms and conditions of a civil servant, the same can
be treated as an order in terms of subsection (1) of
section 4 of the Act in order to file an appeal before
the Service Tribunal. However, in the present case,
the petitioners' case is founded solely on the ground
of discriminatory treatment in violation of Article 25
of the Constitution and not because of any breach of
any provision of the Civil Servants Act or any service
rule. Furthermore, the, question involved is of public
importance as it affects all the present arid future
pensioners and, therefore, falls within the compass of
clause (3) of Article 184 of the Constitution. However,
we may clarify that Zr civil servant cannot bypass the
jurisdiction of the Service Tribunal by adding a ground
of violation of the Fundamental Rights. The Service
Tribunal will have jurisdiction in a case which is
founded

On the terms and conditions of the service even if it


involves the question of violation of the Fundamental
Rights."
In the above fifth case, an appeal with the leave of
this Court was filed against the judgment passed in a
Constitution petition, allowing the same and directing
the Election Commission of Pakistan not to proceed
with the reference under section 8-B of the Political
Parties Act, then pending before it inter alia against
the petitioner. Leave was granted to consider the
following questions:--

"Whether the High Court could issue the writ of


prohibition to the Election Commission when
specially a provision of appeal is provided to the
Supreme Court?

Whether the High Court could declare the reference


made before the Election Commission as
incompetent, without there being evidence of fact
that the petitioner was not a leader of the
Parliamentary Party? And Whether the High Court
could restrain the Election Commission from deciding
a reference, duly referred to it within the meaning of
section 8-B of the Political Parties Act, 1962?'

The above appeal was allowed and the aforesaid


judgment was set aside, the case was remanded to
the High Court inter alia to decide the vires of section
8-B of the Act but it was made clear that there shall
be no restraint on the Election Commission of
Pakistan in the matter of adjudicating the controversy
pending before it. I happened to be a member of the
Bench which heard the above case. I recorded my
note of dissent on the question of remand of the case
to Peshawar High Court for deciding the question of
vires of section 8-B of the Act as I was of the view that
the same should be decided by this Court.

18. On the other hand, Mr. Khalid Anwar has referred


to the case of Mr. Fazlul Quader Chowdhry and
others v. Mr. Muhammad Abdul Haque PLD 1963 SC
486, the case of Akhtar Ali Parvez v. Altafur Rehman
PLD 1963 (W.P.) Lahore 390, the case of the Manager,
Khewra Salt Mines, Khewra v. The Mines Employees
and Labour Union, Khewra through General Secretary
of Union and another PLD 1976 Lah. 601 and the case
of J.K. Manufacturers Ltd. (Formerly J.K. Cotton
Manufacturers Ltd.) v. The Sales Tax Officer, Sector II,
Kanpur and others AIR 1970 All. 362.

In the first case the facts were that an appeal with the
leave of this Court was filed against the judgment of
erstwhile High Court of East Pakistan passed in a
Constitution petition impugning certain amendments
made in certain Articles including Articles 103 and
104 of the late Constitution of Pakistan, 1962, in
order to enable the appellants who were the
members of the Central Council of Ministers to give
inter alia the right of speaking in the National
Assembly, who were not otherwise entitled to. Before
this Court inter alia it was contended that the above
Constitution petition which was allowed by the High
Court was not competent, as adequate alternate
remedy in terms of Article 98 of the above
Constitution was available to the
respondents/petitioners. The above contention was
repelled by Cornelius, C.J. and his companion learned
Judges who also recorded their separate opinions.
Cornelius, C.J. in this regard observed as under:--

"President in excluding Ministers from the category of


holders of offices of profit in the service of Pakistan
was an action which he was empowered to perform
in terms of Article 224(3). This raises a question of
conflict between the Constitutional provision and a
sub ?Constitutional instrument which might
conceivably have a higher status than law of a
Legislature (if only because of the absence from
Article 224 of any provision to enable such a law to be
amended, or repealed by the National Assembly).
Such a question has no quality similar to the
questions of fact which falls within the purview of the
Chief Election Commissioner. He is a statutory
authority and must observe and obey the law as he
finds it. It will not be for him in the discharge of his
functions to question the vires of any law."

Whereas Hamoodur Rehman, J. recorded the


following observation:

"But I would go further and say that even if it was


attracted, it would not be such an adequate remedy
as to exclude the operation of Article 98. Article 98
gives the right to any citizen to approach the High
Court, whereas under Article 104(2) the Chief Election
Commissioner is to be set into motion by a reference
from the Speaker, who may either act suo motu or
upon a motion in the House by a member. In the
present case, there is no dispute that the Speaker did
not make any reference. Indeed, Mr. Brohi has drawn
our attention to the official report of the National
Assembly Debates of the 19th of June, 1962, to show
that an effort was made on that date by some
members to move a motion for adjournment to
discuss the President's Order No.34 of 1962, under
Article 224(3) enabling members of the National
Assembly and Provincial Assemblies to be appointed
as members of the Council of Ministers without loss
of their seats in the Assemblies concerned, but on an
objection from the then Law Minister the motion was
disallowed. There the matter rested until the High
Court of East Pakistan was moved. Again, neither the
Chief Election Commissioner nor the Speaker could
have the jurisdiction to question the constitutionality
of the impugned order. They would have been bound
to give effect to ; it. The proceedings contemplated
under clause (2) of Article 104 cannot, therefore, in
any sense of the term, be an adequate alternative
remedy so as to bar the application of Article 98."

In the above second case, a Full Bench of the


erstwhile High Court of West Pakistan, headed by
Manzur Oadir, CJ., while. dealing with a second
appeal arising out of the provisions of the late West
Pakistan Urban Rent Restriction Ordinance, 1959,
touched upon the question of jurisdiction of Special
Tribunal. It may be advantageous to reproduce the
following observation from the opinion of Manzur
Oadir, CJ.:--

"15. An objection to the jurisdiction of a Tribunal may


take one of the following general forms--

(i) ????????????that the law under which that


Tribunal is created is defective or invalid;

(ii) ??????????that .the Tribunal is not constituted


or appointed validly under the law;

(iii) ?????????that a party or the parties is or are not


amenable to the jurisdiction of the Tribunal; and

(iv) ?????????that the subject-matter is outside the


field in which the particular Court is competent to act.

It seems to me that when an objection is taken to the


jurisdiction of the Tribunal, that objection must be
treated as a preliminary objection and must be
resolved before taking any further action. That,
however, does not mean that once an objection to
jurisdiction is taken, an adjournment in the case must
automatically follow. An adjournment in the case is
necessitated only when the question raised is one
that can be determined by that Tribunal and requires
materials which are not before the Tribunal and to
bring which time is necessary. If the objection raised
is capable of being considered and disposed of on the
materials before the Tribunal, an adjournment ought
not to be granted. If a plea falling in the first or the
second category is raised before a Special Tribunal,
the answer of the Special Tribunal, which is a creature
of the special law and is constituted or appointed
under that law, must be simply and shortly that these
matters are not for the Special Tribunal to decide. If a
party needs a decision on those points, it will have to
apply to the Courts of general jurisdiction in
appropriate proceedings for that purpose. If, for
example, a Rent Controller is told by a party before
him that the West Pakistan Urban Rent Restriction
Ordinance is invalid, he ought not, on that ground,
adjourn the proceedings in that case to hear
elaborate arguments on some future date. Were he
to do so, the logical procedure for him would be, not
only to adjourn that case but to adjourn all cases, and
not only to adjourn cases but also to wind himself up
as a Rent Controller till he `has decided whether he is
a Rent Controller or not a Rent Controller under a
valid piece of Legislature. Similarly, if a Rent
Controller is told that his own appointment is
defective, it is not for him to postpone the hearing in
that particular case because his appointment is
challenged as defective; if it is defective, it is
defective not only for the case in which the objection
has been raised but also for all other cases. In respect
of all such objections, the obvious and short answer
of the Rent Controller must be that he, being a
creature of the very laws or notifications which are
being challenged before him, cannot suspend himself
till he determines that matter; and that he must
proceed so far as he is concerned on the assumption
that his existence as a Rent Controller is of legal
validity until a Court of competent jurisdiction
decides or directs to the contrary."

In the third case, an award made by the Industrial


Relations Commission upon a reference made by the
Federal Government under the provisions of section
22-A(8)(c) read with section 32 of the I.R.O., 1969,
was impugned through a Constitution petition,. A
learned Single Judge of the Lahore High Court, while
allowing the above Constitution petition, made
following observation on the question, as to whether
a Tribunal can go into the vires of enactment under
which it has been created:--

"It is true that a Tribunal cannot go into the vires of


an enactment under which it has been created but
certainly it is its duty to determine if it has the
jurisdiction in the given situation. Reference be made
to the judgment of the Supreme Court in Mehr Dad v.
Settlement and Rehabilitation Commissioner PLD
1974 SC 193."

In the last case, a Full Bench of Allahabad High Court


inter alia considered the question, whether the Sales
Tax Authorities were competent to decide, whether
Rule 12-A of the U.P. Sales Tax Rules was ultra vires.
Pathak, J. in his note referred inter alia the case of
K.S. Venkatareman & Co. (P.) Ltd. v. State of Madras A
I R 1966 SC 1089 and pointed out that the majority
view expressed by the Indian Supreme Court with
regard to the jurisdiction exercised under section 66
of the Income Tax Act, 1922, by the High Court was of
a special advisory jurisdiction which in its scope was
strictly limited by the section conferring the
jurisdiction and that it could only decide the question
of law that arose out of the order of the Tribunal and
that were referred to it and not the question of vires
of the statutes. It was further pointed out by him that
the Supreme Court in the above majority view also
held that as the. Tribunal was a creature of the
statute, it could decide the dispute between the
assessee and the Commissioner in terms of the
provisions of the above Act and that the question of
ultra vires was foreign to the scope of its jurisdiction.
He also referred other cases of the Indian Supreme
Court and held that the Sales Tax Authorities could
not be expected to decide, whether a rule
suporting'to be made under a statutory provision was
ultra vires.

19. Referefice may also be made to the case of Chief


Adjudication Officer and another v. Foster (1993) 2
WLR 292 decided by the House of Lords and pointed
out by my learned brother Fatal Karim, J. during the
course of arguments. The facts of the above case
were that one Rosaleen Foster, who was receiving
income support since 11-4-1988 when Part II of the
Social Security Act, 1986 came into force, applied for
a review of a decision before the Adjudication Officer,
who declined the same. His appeal before the
Security Appeal Tribunal was also dismissed.
Thereupon, he appealed to the Social Security
Commissioner, who allowed the same by holding that
sub?paragraphs 13(2)(a)(ii) and (iii) of Schedule 2 to
the Income Support (General) Regulations, 1987
framed by the Secretary of State under section 22(4)
of the Social Security Act, 1986, were ultra wires the
powers of the Secretary of State. The Court of Appeal
upon appeal filed by the Chief Adjudication Officer by
unanimous view held that the Commissioner had no
jurisdiction to decide the vices of Regulations made
by the Secretary of State, but instead of allowing the
above appeal on the above ground, proceeded to
examine the vices of the above Regulations in
exercise of its original jurisdiction and by majority
held that the relevant provision was intra wires. The
matter was brought before the House of Lords. Lord
Bridge of Harwich, who rendered the opinion on
behalf of the House of Lords, reversed the finding of
the Court of Appeal on the question that the
Commissioner had no jurisdiction to go into the
question of wires of the above provision of the
Regulations and observed as under:--

"This, again, I find quite unconvincing. The


Commissioner has no power and no authority to
decide anything but the issue which arises in the case
before him, typically, as in this case, whether in
particular circumstances a claimant is or is not
entitled to the benefit claimed. If the success of the
claim depends, as here, on whether a particular
provision in a regulation is both ultra wires and
severable, the Commissioner's decision of that
question is merely incidental to his decision as to
whether the claim should be upheld or rejected. If
not appealed, his . opinion on the question may be
followed by other Commissioners, but it has, per se,
no, binding force in law. To my mind it would be very
surprising if the Commissioners were empowered to
make declarations of any kind and the absence of
such a power does not, in my opinion, throw any light
on the question presently in issue."
20. The above reports relied upon by Mr. Syed
Sharifuddin Pirzada do not touch upon the question
involved in the instant case, namely, whether a
Tribunal which is the creature of a provision of a
statute can decide the question of wires of such
provision. In none of the above cases, it has been
held that a Tribunal, which has been created by a
provision of a statute, can examine the question of
wires of the said provision. The cases referred to by
Mr. Khalid Anwar seem to be apt to the controversy
in issue. In the above first case of Muhammad Hashim
Khan, departmental orders were challenged through
Constitution petitions inter alia on the grounds of
mala fide and voidness of the law under which they
were passed because of violation of Article 25 of the
Fundamental Rights. In one of the said Constitution
petitions a notification fixing seniority was impugned
on the ground of voidness. In that context, it has
been held that since the Service Tribunal in view of
section 5 of the Service Tribunals Act is deemed to be
a Civil Court for the purpose of deciding any appeal
before it, with the powers of the Code of Civil
Procedure, it will like any other Civil Court have the
jurisdiction to examine whether or not a law is void
by reason of its conflict with the Fundamental Rights
or is otherwise ultra vices. In the above second case
of Lahore High Colirt, namely, Muhammad Asif, an
order of transfer was impugned through a
Constitution petition. The learned Judge. in Chambers
while dismissing the same referred to above Quetta
case and Supreme Court case of Iqan Ahmed Khurram
(supra) and made the aforesaid observation, whereas
in the latter case (which is the third case relied upon
by the learned counsel for the respondents), certain
statutory rules adversely affecting the terms of
service were challenged through Constitution
petitions, this Court while affirming the High Court
judgment dismissing the above Constitution petitions
approved the above Quetta case. In the fourth case of
LA. Sherwani decided by this Court, it has been
reiterated that a civil servant if is aggrieved by a final
order, whether original or appellate passed by a
departmental authority in respect of his terms and
conditions of service, his remedy, if any, is by way of
an appeal before the Service Tribunal. It has been
further held that a statutory rule or a notification
adversely affecting the terms of service of a civil
servant can be treated as an order in terms of
subsection (1) of section 4 of the Service Tribunals Act
for the purpose of filing of an appeal and can be
impugned before the Service Tribunal even on the
ground of violation of the Fundamental Rights. It may
be stated that except in the first Quetta case, the
subject-matters in the remaining above three reports
were statutory rules or a notification or an executive
order and, therefor, question of wires of law was not
involved.

The fifth case has also no direct relevance, as the


mere fact that this Court asked the Election
Commission to proceed with the reference pending
before it under section 8-B of the Act, does not mean
that this Court was of the view that the question of
wires of above section could be competently decided
by the Election Commission. On the contrary,
Peshawar High Court was specifically directed in the
remand order to decide the above question, which
fact militates against the above inference attempted
to be drawn by the learned counsel for the
respondents.
Mr. Sharifuddin Pirzada also referred to a passage
from a treatise, namely, "Constitutional Law of
Canada" by Peter W. Hogg, 3rd Edition (Student
Edition), in which under the caption "Administrative
Tribunals with the power to decide questions of law",
the author on the basis of two cases of the Supreme
Court of Canada? has observed that such Tribunals
have the power to determine the constitutionality of
a provision of a law while deciding matters brought
before it. But, this observation cannot be pressed into
service in order to contend that such a Tribunal can
examine the wires of the provision
of law under which it has been created.

?????????????????21. On the other hand, this


Court in the case of Mr. Fazalul Quader Chowdhry
and others (supra) has clearly laid down that the Chief
Election Commissioner is a statutory authority. As
per, Cornelius, C..1.'s finding recorded therein, "it will
not be for him in the discharge of his functions to?
question the wires of any law". Whereas in the words
of Hamoodur Rahman, J.
"neither the Chief Election Commissioner nor the
Speaker. could have the jurisdiction to question the
constitutionality of the impugned order. They would
have been bound to give effect to it". The ratio
decided of the above Lahore Full Bench case of
Akhtar Ali Parvez appears to be in line with the above
judgment of this Court. It has been rightly held
therein that a Tribunal which is the creature of a
statute cannot examine the wires of the provision
under which it has been created nor it can examine
the validity of the notification under which it has
been appointed/constituted. The above second
Lahore case mentioned at Serial No.(iii) viz. The
Manager, Khewra Salt Mines, Khewra, also reiterates
the above legal proposition. Whereas above
Allahabad High Court Full Bench case, namely, J.K.
Manufacturers Ltd. on the basis of the judgments of
Indian Supreme Court referred to therein has held
that the Sales Tax Authorities cannot examine the
wires of the Sales Tax
Rules. It has been further held on the basis of an
Indian Supreme Court judgment that a High Court
while hearing a reference under section 66 of the late
Indian Income Tax Act, 1922, had no power to
examine the wires of the statutes.

The above House of Lords case of the Chief


Adjudication Officer is in line with the judgments of
the Superior Courts of Pakistan, in which it has been
held that a Service Tribunal can examine the wires of
a statutory service rule affecting adversely the terms
of service. In the above case as stated above, it has
been held that the Commissioner under the Social
Security Act, 1986, while hearing an appeal against an
appellate order of the Security Appeal Tribunal, could
decide the question of wires of the Regulation
involved framed by the Secretary of State under
section 22(4) of the Act. However, Lord Bridge of
Harwich who rendered the opinion on behalf of the
House of Lords made it clear that the Commissioner's
decision on the question of wires was merely
incidental to his decision, as to whether the claim
should be rejected. It was further clarified by
observing that, "if not appealed, his opinion on the
question may be followed by other Commissioner,
but it has, per se, no binding force in law".
The above case also does not advance the case of the
respondents.

The regulation which was framed by the Secretary of


State in exercise of the power contained in section
22(4) of the above Act can be equated with a
statutory service rule and, therefore, the above case
cannot be pressed into service for urging that a
Tribunal created under a special law, can declare any
provision of such law as ultra wires particularly the
provision, which has created it. On the contrary, the
ratio decided of the above case is that a Special
Tribunal has no power even to render a declaration of
a binding effect as to the ultra wires of a statutory
regulation in the absence of express provision of law.

I may point out that there is distinction between a


provision of a statute, which creates a Special
Tribunal and a provision of such statute which
specifies disputes/matters over which such a Special
Tribunal will have jurisdiction. The Special Tribunal so
created cannot decide that the provision under which
it has been created is ultra wires the Constitution or
that its appointment/constitution is defective or
invalid. But, it will have jurisdiction to decide the
questions, whether it has jurisdiction over the matter
brought before it in terms of the relevant provisions
of the statutes or whether the parties against whom
the case has been fled are amenable to its
jurisdiction.

However, it was submitted by Mr. Syed Sharifuddin


Pirzada that the Chief Election Commissioner and the
Election Commission are the creatures? of Articles
213 and 218 of the Constitution and, therefore, ratio
decidend of the cases relied upon by Mr. Khalid
Auwer is not attracted to in the present case. I am not
impressed by the above submission, no doubt that
the Constitution has provided for the above two
functionaries, but it. may be stated that the ground of
defection is not provided in Article 63 of the
Constitution, but has been provided in section 8-B of
the Act. The Legislature, while enacting the above
provision under item 41 of the Fourth Schedule to the
Constitution, read with sub-clause (p) of clause (1) of
Article 63, has conferred jurisdiction on. the Election
Commission in respect of the dispute relating to
defection, which amounts to creation of a new forum
by the section. Additionally, this Court in the case of
Mr. Fazalul Quader Chowdhry has clearly held that
the Chief Election Commissioner has no jurisdiction to
declare a law invalid. The same parity of reasoning
shall be applicable to the Election Commission.

23. I may also observe that the reason found favour


with the learned Judges of the Division Bench in
Quetta case of Muhammad Hashim Khan and others
(supra) that since the Tribunal under section 5 of the
Balochistan Service Tribunals Act (V of 1974) is
deemed to be a Civil Court under the Civil Procedure
Code for the purpose of the deciding any appeal
before it,, it will ~ D have jurisdiction as any other
Civil Court or Tribunal to examine, whether or 'r1 not
a law is void by reason of its conflict with the
Fundamental Rights, in my humble opinion, does not
seem to be in consonance with well-established
juris prudential distinction between a Special Tribunal
created under a special law and a Civil Court having
plenary jurisdiction. Cornelius, C.J. and Hamoodur
Rahman, J. seemingly had in mind the above
distinction while' making observation in the case of
Mr. Fazlul Ouader Chowdhry (supra) that the Chief
Election Commissioner had no power to declare a law
invalid. Lord Bridge of Harwich apparently had also in
mind the above distinction, when he observed in his
opinion in the case of Chief Adjudication Officer
(supra) that the Commissioner had no power in the
absence of express provision in the relevant law to
give a binding declaration that a statutory regulation
'was ultra vires. It may be stated that a Special Court
derives its jurisdiction under the provisions of the
special law under which it has been created and not
under the Civil Procedure Code. The Balochistan
Service Tribunal has jurisdiction over the matters
specified in section 4 of the said Act.

Subsection (1) of section 5 of the above Act defines


the powers of the Tribunal with reference to above
section 4 by providing that a Tribunal may on appeal,
confirm, set aside, vary or modify the order appealed
against. Whereas subsection (2) thereof provides that
the Tribunal shall for the purpose of deciding any
appeal be deemed to be a Civil Court and shall have
the same powers as are vested in such Court under
the Code of Civil Procedure, 1908 Act (V of 1908)
including the powers of--
(a) enforcing the attendance of any person and
examining him on oath;

(b) compelling the production of documents;

(c) issuing commission for the examination of


witnesses and documents.

In my view the above subsection (2) of section 5 does


not extend the jurisdiction of the Tribunal by
providing that the Tribunal shall be deemed to be a
Civil Court for the purpose of deciding an appeal
before it but the object seems to be to provide a
provision for regulating the procedural matters. We
find identical provision in other enactments. It will
suffice to refer to section 64 of the Act (i.e. The
Representation of the People Act, 1976) and section
45(1) of the Senate (Election) Act, 1975, which are
couched in identical words. The former section reads
as under:--

"Section 64. Power of the Tribunal.--- The Tribunal


shall have all the power of a Civil Court trying a suit
under the Code of Civil Procedure, 1908 Act (V of
1908) and shall be deemed to be a Civil Court within
the meaning of sections 476, 480 and 482 of the Code
of Criminal Procedure, 1898 (Act V of 1898)."

Can it be said that an Election Tribunal has co-


extensive jurisdiction with a Civil Court having general
jurisdiction in matters other than procedure?

However, one can urge that since clause (1) of Article


212 provides that, "Notwithstanding anything
hereinbefore contained, the appropriate Legislature
may by Act provide for the establishment of one or
more Administrative Courts or Tribunals to exercise
exclusive jurisdiction in respect of (a) matters relating
to the terms and conditions of persons (who are or
have been) in the . service of Pakistan, including
disciplinary matters," a Service Tribunal has
jurisdiction to examine the question of vires of a law
keeping in view the fact that under clause (3) of the
above Article an appeal involving a substantial
question of law of public importance against an order
of a Service Tribunal lies to this Court with the leave.
Even if I were to accept above contention, a Service
Tribunal cannot examine the vires of the. relevant
provision of the statute under which it has been
created. Additionally, it may be pointed out that
clause (1) of Article 212 of the Constitution does not
cover the Election Commission or the Chief Election
Commissioner, nor there is any other corresponding
provision in the Constitution excluding the jurisdiction
of the Superior Courts in respect of 'the controversy
in issue. In this view of the matter, a Service Tribunal
cannot be equated either with the Election
Commission of with the Chief Election Commissioner
and, therefore, the cases relating to the service
matters cannot be invoked in aid to contend that the
Election Commission has the jurisdiction to examine
the vices of section 8-B of the Act.

24. Adverting to the alternate submission of Mr. Syed


Sharifuddin Pirzada that this Court being the apex
Court has wider powers while hearing an appeal and,
therefore, it is competent to examine the question of
vices of section 8-B of the Act, it may be observed
that it is a well-settled proposition of law that' in the
absence of anything contrary in the relevant statute
an appellate forum has the same power as the
original forum- had enjoyed in the matter in issue.
The present two appeals have been filed under
subsection (3) of section 8-B of the Act, which
provides that "an , appeal against a decision of the
Election Commission under subsection (2) shall lie to
the Supreme Court, within 30 days of the decision." It
is evident from the above-quoted provision that it
does not provide anything contrary to the above well-
settled proposition, hence, this Court while hearing
an appeal under the above provision has co-extensive
powers with the Election Commission. Since the
Election Commission was not competent to go into
the vices of section 8-B of the Act, this Court also
cannot examine the above question in exercise of the
appellate jurisdiction under above subsection (3) of
section 8-B of the Act.

25. However, Mr. Syed Sharifuddin Pirzada has


referred to Articles 184(3) and 187(1) of the
Constitution in support of his above contention. The
former provides that "without prejudice to the
provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with
reference to the enforcement of any of the
Fundamental Rights conferred by Chapter 1 of Part II
is involved have the power to make an order of the
nature mentioned in the said Article." Whereas the
latter provision lays down that "Subject to clause (2)
of Article 175, the Supreme Court shall have power to
issue such directions, orders or decrees as may be
necessary for doing complete justice in any case or
matter pending before it; including an order for the
purpose of securing the attendance of any person or
the discovery or production of any document".

?????????????????Mr. Syed Sharifuddin Pirzada


has also referred to Order XXXIII,
?????????????????Rule 6 of the Supreme Court
Rules, which provides that "Nothing in these
???rules shall be deemed to limit or otherwise
affect the inherent powers of the ??Court to make
such orders as may be necessary for the ends of
justice or to ????prevent abuse of the process of
the Court". To reinforce the above submission,
??????he has referred to the case of Noora and
another v. The State PLD 1973 SC 469, the case of
Said Mian and another v. Mian Said Baghdad and
another ?????1980 SCMR 420, the case of
Muhammad Aslam and another v. Munshi
Muhammad Behram and another 1991 SCMR 1971,
the case of Mst. Safyya and another v. Muhammad
Rafique and 6 others PLD 1993 SC 62 and the case
??????????????of Muhammad Tufail and
another v. Mirza Azizullah and 14 others 1994 SCMR
347.
?????????????????
In the above first case, this Court, while dealing with
the question, ?whether in a criminal matter it can re-
examine the evidence keeping in view ????the
practice which was followed in such matters by the
Privy Council and the Federal Court of India, observed
as under.-?
?????????????????
"From this day onwards, it is suggested, the Supreme
Court did ?????????become an appellate Court
even in criminal matters and there was no
??????????????longer any analogy between it
and the Privy Council or the Federal ???????Court.
It was the highest Court at the apex of the judicial
system in the ??????????????country and it was
armed with all the powers of a Court of Appeal
without any limitations whatsoever. Therefore,
the decisions of the ??Privy Council or. the
Federal Court circumscribing their own
?????????????jurisdiction by self-imposed
restrictions necessitated both by the
?????????????????extraordinary nature of the
jurisdiction exercised by the Privy Council and the
special circumstances under which it functioned
hearing ??????.appeals from distant lands inhabited
by different types of people, no
????????????????longer had any relevance in
the context of its jurisdiction as a
?????????????????Constitutional Court of
Appeal functioning within the country at the apex of
its judicial system."
?????????????????In the second case the
question in issue before this Court was, as to
?????????????????whether this Court while
granting leave to appeal against an order of acquittal
?????????????passed by the High Court has the
power to order the arrest of the acquitted ??person,
pending the disposal of the appeal? The above
question was answered in the affirmative after
referring to Article 187(1) of the Constitution, the
????????????corresponding Article of the Indian
Constitution, namely, Article 210(2) and the case-law
in the following terms:--

"Examining the instant case in the light of the above


observations and the other text referred to above, it
will be evident that this Court having jurisdiction to
entertain and adjudicate upon an acquittal appeal
just as in the passage above quoted the Federal Court
had power to proceed in a case of contempt has all
the powers relevant in this behalf including
availability of the same machinery for making that
power effective as for example the High Court
possessed. It is not disputed that the High Court in an
acquittal appeal has the power to issue non-bailable
warrants against the acquitted accused. No doubt,
this power, vis-a-vis, the High Court was specifically
conferred on it by section 427 of the Criminal
Procedure Code, but this power was essentially of
power to enable securing the attendance of the
persons being proceeded against. Consequently, the
same power was conferred upon the Supreme Court,
by the Constitution-makers by providing that `the
Supreme Court shall have power to issue such
directions, orders or decrees ... including an order for
the purpose of securing the attendance of any
person', for the same purpose. It is noteworthy that
the power conferred by Article 187 is for securing
attendance of any person. The word `secure' means
`to make certain: to put beyond hazard' (Webster). To
secure, according to Aiyer is to make safe. Thus, this
Court in order to make it safe and certain that a
person whose acquittal is found open to question is
ultimately brought to punishment can secure his
attendance by keeping him in jail during the
pendency of the appeal."

In the above remaining cases it has been reiterated


that under clause (1) of Article 187 of the
Constitution, this Court enjoys the power to issue
such directions, orders or decrees as may be
necessary for doing complete justice in any case or
matter pending before it.

26. On the other hand, Mr. Khalid Anwer has drawn


our attention to Article 175 of the Constitution which
deals with the establishment and jurisdiction of the
Supreme Court and the High Courts in the Provinces
and clause (2) of which provides that "No Court shall
have any jurisdiction save as is or may be -conferred
on it by the Constitution or by or under any law". He
has further pointed out that original clause (1) of
Article 187 did not contain the words "Subject to
clause (2) of Article 175; but they were added by the
Constitution (Fifth Amendment) Act, 1976) (Act LXII of
197(>) with effect from 13-9-1976. After the decision
in the case of Ch. Zahur Ilahi, M.N.A. v. The State PLD
1977 SC 273, which was rendered on 15-7-1976 and
in which it was held that under Articles 199 and .187
of the Constitution, the superior Courts while
exercising their Constitutional jurisdiction had the
power to set aside actions taken or orders passed by
Executive Authorities notwithstanding finality
conferred by Special defence laws as the Constitution
overrides all the laws including defence laws. The
petitioner was granted bail in exercise of the power
contained in clause (1) of Article 187 of. the
Constitution by this Court. It may be advantageous to
reproduce from the opinion of Muhammad Afzal
Cheema, J, the following observation on the above
question:--
"Considering the entire position in the background
explained above,, the conclusion I have reached is
that prima facie reasonable grounds appear to exist
to give rise to the belief that the allegations of mala
fide may not be untrue. It is nothing but the
expression of a tentative view analogous to the
opinion of the Court which it is called upon to express
at the pre-trial stage in bail matters under section
497, Cr.P.C. I am in respectful agreement with my
learned brother Salahuddin Ahmed, J. that this prima
facie finding would be good enough to justify the
.grant of interim bail to the petitioner, and that it was
wrongly denied to him by the High Court. I also
respectfully endorse the following observation of his
Lordship in Manzoor Ilahi v. Federation of Pakistan P L
D 1975 SC 66 wherein incidentally also the detention
of the present petitioner was challenged by his
brother, `when the liberty of a person is involved a
High Court can exercise its jurisdiction under Article
199 of the Constitution and grant him relief even
though he has misconceived his remedy and came up
with an application under sections 498 and 561-A of
the Criminal Procedure Code'. I am also of the view
that in the circumstances of the case, this Court
would be competent to allow bail to the petitioner in
legitimate exercise of its Constitutional jurisdiction
under Article 187 of the Constitution. The provision
reads as follows:--

`(187).--(1) The Supreme Court shall have power to


issue such directions, orders or decrees as may be
necessary for doing complete justice in any case or
matter pending before it, including an order for the
purpose of securing the attendance of any person or
the discovery or production of any document.'

Doing complete justice is indeed a very


comprehensive term and in my humble opinion
means doing real and substantial justice without
being fettered by legal formalism, so that the
paramount interests of justice are not allowed to be
sacrificed at the altar of mere technicalities. It is to
safeguard these interests that the Constitution has
conferred vast discretionary powers on the Supreme
Court which is on the apex of the judicial hierarchy
and the Court of last resort. This view finds support
from the following observation made by Hamoodur
Rahman, C.J. in Noora's case PLD 1973 SC 469."
27. There is no doubt that in none of the above cases
cited by Mr. Syed Sharifuddin Pirzada, the above
amendment made in Article 187(1) of the
Constitution with effect from 13-9-1976, was noticed.
The effect of the above amendment seems to be that
the provision of clause (1) of Article 187 can be
pressed into service subject to clause (2) of Article
175 of the Constitution. In other words, the Supreme
Court shall have no jurisdiction save as is or may be
conferred on it by the Constitution or by or under any
law. To put it differently clause (1) of Article 187 itself
does not confer any jurisdiction on the Supreme
Court but it provides a provision whereby the
Supreme Court can exercise its jurisdiction conferred
by the Constitution or by any other law more
effectively by issuing such directions, orders or
decrees as may be necessary for doing complete
justice in any case or matter pending before it and in
doing so the. Supreme Court will not be fettered with
technicalities which may result in miscarriage of
justice. It may be pointed out that - there is no similar
amendment made in Article 210(2) of the Indian
Constitution and, therefore, the decisions of the
Courts of Indian jurisdiction will not be relevant for
the purpose of construing clause (1) of Article 187 of
the Constitution after 13-9-1976.

It may be mentioned that Article 184 of the


Constitution confers original jurisdiction on the
Supreme Court, whereas Articles 185 and 212(3)
appellate jurisdiction and Article 186 advisory
jurisdiction. The present appeals cannot be treated as
appeals under the appellate Constitutional
jurisdiction of this Court as they were filed under
subsection (3) of section 8-B of the Act as pointed out
hereinabove. However, this Court can invoke clause
(3) of Article 184 of the Constitution in a fit case. 'The
above clause has beer reproduced hereinabove in
para, 25. It cannot be invoked in every case.

28. A perusal of the above-quoted clause indicates


that it can be pressed into service if the following two
conditions are fulfilled:--

The case involves a question of public importance;


and
(ii) ??????????the question so involved pertains to
the enforcement of any of the Fundamental Rights
contained in Chapter 1 of dart II of the Constitution.

In this regard reference may be made to the case of


Syed Wasey Zafar and 4 others v. Government of
Pakistan through Secretary, Finance and others PLD
1994 SC 621, in which I have highlighted the above
aspect, at pages 636 to 638 and pointed out the
distinction between the jurisdiction of the Supreme
Court under Article 184(3) and of a High Court under
Article 199 of the Constitution.

29. In the case in hand the question, whether section


8-B of the Act is ultra vires the provisions of the
Constitution, no doubt is a question of public
importance and, therefore, the above first
requirement is met.

As regards the second requirement, it may be


observed that Mr. Syed Sharifuddin Pirzada has
referred to the violation of Articles 2A, 4, 14, 17, 19,
63 and 66 of the Constitution. In the above Articles
referred to, Articles 2A, 4, 63 and 66 do not fall in the
Chapter containing Fundamental Rights and,
therefore, strictly speaking this Court in exercise of its
original jurisdiction under clause (3) of Article 184 of
the Constitution cannot examine the
violation of the above Articles though it will have
jurisdiction to examine the same if a matter is
brought before it in appellate jurisdiction against a
judgment of the High Court in exercise of inter olio its
Constitutional jurisdiction. Since both the parries
have argued on the question of vices of section 8-B of
the Act even with reference to Articles 63 and 66 of
the Constitution I have examined the above question
on merits subject to the above reservation.

?????????????????30. Before touching upon the


question of vices of section 8-B of the Act as a whole,
I may deal with the above fourth contention of Mr.
Syed Sharifuddin Pirzada that even otherwise in view
of clause (2) of Article 63 of the Constitution which
provides a reference to the Chief Election
Commissioner on the question of disqualification, the
above two references under section 8-B(2) of the Act
were misconceived, it may be observed that two sets
of references against the respondents were filed; one
set filed by the,; Speaker,
N: W.F.P. Assembly before the Chief Election
Commissioner under Article 63(2) of the Constitution
and the other set by the appellant under section 8-
B(2) of the Act before the Election Commission. In
both the above sets, the respondents raised objection
based on the plea of lack of jurisdiction. In the
reference filed before the Chief Election
Commissioner under Article 63(2) of the Constitution,
the respondents pressed the aforesaid objection and
succeeded in getting the reference rejected through
the judgment, dated 5-5-1994. In the other set of
references under section 8-B(2) of the Act, the above
objection was not pressed as is indicated in the
majority and minority judgments of the Election
Commission. They won the case on merits on the
basis of the majority judgment, dated 5-5-1994 in
which it was held that the appellant failed to prove
defection on the part of the respondents on the basis
of the standard of proof of a criminal case, namely,
beyond reasonable doubt. The respondents did not
61e any appeal against the above judgment of the
majority nor they filed any appeal against the
aforesaid judgment of the Chief Election
Commissioner holding that the reference under
Article 63(2) of Constitution was incompetent. The
appellant filed above two appeals against the
aforesaid majority judgment of the Election
Commission.
In my view, since neither of the parties had filed any
appeal against the above judgment of the Chief
Election Commissioner, dated 5-5-1994 under Article
63(2) of the Constitution, the same acquired finality
and it was not open to either of the parties to urge
that the Chief Election Commissioner in fact had the
jurisdiction under Article 63(2) of the Constitution
and not the Election Commission. Particularly the
respondents after having got the Speaker's above
reference under Article 63(2) of the Constitution
against them dismissed on the ground of lack of
jurisdiction, they cannot be allowed to raise the
above plea on any principle of law. Even otherwise,
the Chief Election Commissioner while presiding the
Election Commission in his minority judgment
recorded a finding of fact against the respondents on
the question of defection. If the respondents would
not have pressed the above objection of lack of
jurisdiction before the Chief Election Commissioner in
the reference under Article 63(2) of the Constitution,
he would have recorded the same finding of fact as
he did while acting as the Chairman of the Election
Commission for the reason that the same Chief
Election Commissioner decided the matters on the
same day. The respondents got the majority
judgment from the Election Commission in their
favour, got benefit thereunder by remaining
members of the Assembly, now intend to make a
complete somersault. In my view, since we are
exercising original jurisdiction under Article 184(3) of
the Constitution, in other words, jurisdiction under
Article 199 of the Constitution which can be pressed
into service to foster the cause of justice in favour of
a person who approaches the Court with clean hands
and not to perpetuate injustice in favour of a person
whose conduct has not been above board, the same
cannot be invoked in favour of the respondents on
account of their above conduct, for non-suiting the
appellant at this late stage. In this regard reference
may be made to the -case of Said Ali Shah v. Abdul
Saghir Khan Sherwani P L D 1990 SC 504, in which the
above legal proposition has been dilated upon and a
series of judgments of this Court on the above point
have been referred to.

31. As regards the merits of the above argument, it


may be stated that clause (1) of Article' 63 of the
Constitution provides that "A person shall be
disqualified from being elected or chosen as, and
from being, a member of the Majlis-e-Shoora
(Parliament), if any of the sub-clauses (a) to (p) is
attracted to. The above sub-clauses do not provide
the ground ' of defection. In this regard it may be
pertinent to point out that original clause (1) of
Article 63 contained sub-clauses (a) to (e) but by
President Order No.14 of 1985 with effect from 2-3-
1985, sub-clauses (f) to (p) were added. It may further
be observed that sub-clause (p) of clause (1) of Article
63 does not specify any specific act or action which
may render a person disqualified from being elected
or chosen as, and from being a member of the Majlis-
e-Shoora, but it is of a general nature which provides
that "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". It may also be
pointed out that above section 8-B of the Act was
enacted by Act XXII of 1985, dated 24-12-1985 i.e.
after more than 9-1/2 months from the date of
incorporation of above sub-clause. (p) in clause (1) of
Article 63 of the Constitution. In other words, this was
not part of the law in force when the above sub-
clause (p) was incorporated in the aforementioned
clause (1) of Article 63 of the Constitution. The
question of vices of section 8-B of the Act will be
examined- in detail while dealing with the above third
submission of Mr. Syed Sharifuddin Pirzada. For the
time being, the only question is, as to whether there
is a conflict between clause (2) of Article 63 of the
Constitution and subsection (2) of section 8-B of the
Act. Before dealing with the above question, it may
be advantageous to reproduce clause (2) of Article 63
of the Constitution and section 8-B of the Act, which
read as follows:--

"63. Clause (2) of Article 63 of the Constitution.--(1) ...


... ... ... ... ... ...

(2) ??????????If any question arises whether a


member of the Majlis-e-Shoora (Parliament) has
become disqualified from being a member, the
Speaker or, as the case may be, the Chairman shall
refer the question to the Chief Election Commissioner
and, if the Chief Election Commissioner is of the
opinion that the member has become disqualified, he
shall cease to be a member and his seat shall become
vacant."

Section 8-B of the Act:

"8-B. Disqualification on_ ground of defection, etc.---


If a member of a House,-- '

(a) ??????????having been elected as such as a


candidate or nominee of a political? party, or
(b) ??????????having been elected as such
otherwise than as a candidate or nominee of a
political party and having become a member of a
political party after such election, defects or
withdraws himself from the political party he shall,
from the date of such defection or withdrawal, be
disqualified from being a member of the House for
the unexpired period of his term as such member,
unless he has been re-elected at a bye election held
after his disqualification.

(2) ??????????If any question arises whether a


member of a House has become disqualified under
subsection (1) from being a member, the question
shall, on a reference by the Leader of the
Parliamentary Party concerned, be determined by the
Election Commission.'

(3) ??????????An appeal against a decision of the


Election Commission under subsection (2) shall lie to
the Supreme Court, within thirty days of the decision:'

32.? A perusal of the above-quoted clause (2) of


Article 63 of the Constitution indicates that it
provides that if any question arises, whether a
member of the Majlis-e-Shoora (Parliament) has
become disqualified from being a member, the
Speaker or as the case may be, the Chairman shall
refer J the question to the Chief Election
Commissioner and in case the Chief Election
Commissioner is of the opinion that the member has
become disqualified, he shall cease to be a member
and his seat shall become vacant.

Whereas subsection (1) of section 8-B of the Act deals


with? the question of? is qualification on the ground
of defection. The above provision will be dealt with in
detail at a latter stage. while dealing with the
question of vires. Subsection (2) of the above section
lays down that if any question arises, whether a
member of a House has become disqualified under
subsection (1) from being a member, the question
shall, on a reference by the Leader of the
Parliamentary Party concerned, be determined by the
Election Commission. Whereas subsection (3) thereof
provides a right of appeal to this Court within thirty
days of the decision of the Election Commission.

33. In my humble opinion, there is no conflict


between clause, (2) of Article 63 of the Constitution
and subsections (2) and (3) of section 8-B of the Act.
Since the ground of defection was not covered by any
of the sub-clauses of clause (1) of Article 63 and as
the Legislature thought to provide the same through
the above provision of subsection (1) of section 8-B, it
deemed proper to provide a superior forum in the
form of Election Commission which consists of the
Chief Election Commissioner as the Chairman and two
Judges of the I High Courts as its members in place of
Chief' Election Commissioner alone
and subsection (3) also confers the right of appeal to
this Court which was not ! provided in clause (2) of
Article 63 of the Constitution. The judgment of this j
Court cited by Mr. Syed Sharifuddin Pirzada, namely
Raja Muhammad Afzal v. Ch. Muhammad Altaf and
others 1986 S C M R 1736 does not support the case
of the respondents. On the contrary,' it is in line with
the view which I am inclined to take. As one of the
basic questions involved in the above report was,
whether the judicial adjudication would prevail over
the executive or administrative determination, in that
context, it was held that more plenary adjudication
would prevail over the one which was summary,
whether in procedure or in effect. As pointed out
hereinabove that subsection (2) of section 8-B of the
Act provides a superior forum, of which decision is
subject to right of an appeal to an aggrieved party to
this Court and, hence, it is a superior forum. The mere
fact that clause (2) of Article 63 of the Constitution is
a Constitutional provision and subsections (2) and (3)
of section 8-B have been enacted by the Parliament
through Act XXII of 1985 will not militate against the
validity of the above provisions if the same have been
validly enacted by the Parliament. The above
contention has, therefore, no force even on merits.

34. Adverting to Mr.Syed? Sharifuddin? Pirzada's


contention that section 8-B of the Act is in fact ultra
vires the provisions of the Constitution and,
therefore, the references filed by the appellant under
the aforesaid provision were liable to be dismissed, it
may be observed that Mr. Syed Sharifuddin Pirzada,
learned counsel for the respondents and Mr. Khalid
Anwer, learned counsel for the appellant, have
addressed very learned and exhaustive arguments in
support of their respective point. of view. The thrust
of the arguments of Mr. Syed Sharifuddin Pirzada was
that the above provision of the Act is violative of
Articles 2A, 4, 14, 17, 19, 63 and 66 of the
Constitution. Whereas the contention of Mr. Khalid
Anwer was that since our Constitution is founded on
Parliamentary democracy, the impugned provision in
fact reinforces the above system by providing for
defection and, therefore, the same is not violative of
any of the above provisions of the Constitution. He
has further pointed out that P.P.P. and P.M.L.(N.),
which were the main political parties having
representation in the National and Provincial
Assemblies, in fact obtained mandate from the voters
to strengthen the defection law in order to eliminate
the above evil.

35. It seems that prior to the incorporation of section


8-B, subsection (2) of section 8, which was enacted
through Act XIII. of 1962 on or about 15-7-1962,
provided for defection. The above section reads as
follows:--

"8. Certain disqualifications for being a member of


the National Assembly or a Provincial Assembly.-- (1)
A person who has been an office-bearer of the
Central or a Provincial Committee of a political party
dissolved under subsection (2) of section 6 or who
has been convicted under section 7 shall be
disqualified from being elected as a member of the
National Assembly or a Provincial Assembly for a
period of five years from the date of such dissolution
or conviction, as the case may be.

(2) ??????????If a person having been elected to


the National or a Provincial Assembly as a candidate
or nominee of a political party, withdraws himself
from it, he shall, from the date of such withdrawal, be
disqualified from being a member of the Assembly for
the unexpired period of his term as such member
unless he has been re-elected at a bye-election
caused by his disqualification:'

The above subsection (2) was omitted by Ordinance


NoXXI of 1974, dated 26-10-1974 with effect from 8-
5-1974. The aforesaid section 8 was re?enacted and
amended several times, but it did not contain any
provision corresponding to above subsection (2) of
section 8 of Act III of 1962 and, therefore, no detailed
examination of the same is required. It may further
be observed that Ordinance No.X of 1990, dated 22-
10-1990 added Explanation to section 8-B of the Act,
whereby inter alia defection was defined. Then
subsection (2) of section 8-B was amended by Act
XXIII of 1992, dated 10-2-1992 adding the right of
hearing to the affected member to be provided by
the Election Commission. After that, Ordinance
No.XXX of 1993, dated 7-10-1993 amended the
aforesaid subsection (2) and substituted subsection
(2) of section 8-B of the Act by providing for the
words "Election Commission" the words "majority of
the members of such Parliamentary party of the
House" in subsection (2); whereas in the substituted
subsection (3), the forum of appeal in place of
Supreme Court, the Speaker of the National Assembly
or the Chairman of the Senate as the case may be,
were provided.

The above Ordinance expired on or about 6-2-1993


and thus the original section 8-B of the Act stood
revived.
It will not be out of context to point out that the
proviso to clause (5) of Article 96 of the Constitution
also contained a provision to discourage defection,
which reads as under:--

"Provided that, for a period of ten years from the


commencing day or the holding of the second general
election to the National Assembly whichever occurs
later, the vote of a member, elected to the National
Assembly as a candidate or nominee of a political
party, cast in support of a resolution for a vote of no-
confidence shall be disregarded if the majority of the
members of that political party in the National
Assembly has cast its votes against the passing of
such resolution."

However, the above Article 96 was omitted by


President Order No.14 of 1985 on 2-3-1985.

36. In India several attempts were made without any


result to introduce Bills for providing for defection.
However, eventually by the Constitution 52nd
Amendment) Act, 1985, with effect from 1-3-1985,
clause (2) in Article 102 and Tenth Schedule to the
Constitution were added. It may be observed that
clause (1) of above Article 102 of the Indian
Constitution provides various disqualifications for a
person being chosen as and for being a member of
either House of Parliament, whereas above added
clause (2) lays down as under:--
"(2) A person shall be disqualified for being a member
of either House of Parliament if he is so disqualified
under the Tenth Schedule."

The above Tenth Schedule runs into about three


pages. For the purpose of the present controversy, it
will suffice to reproduce paragraph 2 thereof, which
reads as follows:--

"2. Disqualification on ground of defection.---(1)


Subject to the provisions of paragraphs 3, 4 and 5, a
member of a House belonging to any political party
shall be disqualified for being a member of the
House--

(a) ??????????if he has voluntarily given up his


membership of such political party;
?????????????????or

(b) ??????????if he votes or abstains from voting in


such House. contrary to any direction issued by the
political party to which he belongs or by any person
or authority by it in this behalf, without obtaining, in
either case, the prior permission of such political
party, person or authority and such voting or
abstention has not been condoned by such political
?????????????????party, person or authority
within fifteen days from the date of such voting or
abstention.
?
Explanation.--- For the purposes of this sub-
paragraph,--

(a) ??????????an elected member of a House shall


be deemed to belong to the political party, if any, by
which he was set up as a candidate for election as
such member;

(b) ??????????a nominated member. of a House


shall,--, ,

(i) where he is a member of any political party on the


date of his nomination as such member, be deemed
to belong to such political party;.

(ii) in any other case, be deemed to belong to the


political party of which he becomes, or, as the case
may be, first becomes, a member before the expiry of
six months from the date on which he takes his seat
after complying with the requirements of Article 99
or, as the "case may be, Article 188

(2) ??????????An elected member of a House who


has been elected as such otherwise than as a
candidate set up by any political party shall be
disqualified for being a member of the House if he
joins any political party after such election.

(3) ??????????A nominated member of a House


shall be disqualified for being a member of the House
if he joins any political party after the expiry of six
months from the date on which he takes his seat
after complying with the requirements of Article 99
or, as the case may be, Article 188.

(4) ??????????Notwithstanding anything contained


in the foregoing provisions of this paragraph a person
who, on the commencement of the Constitution
(Fifty- Second Amendment) Act, 1985, is a member of
a House (whether elected or nominated as such)
shall,--
(i) where he was a member of a political party
immediately before such commencement, be
deemed, for the purposes of sub-paragraph (1) of this
paragraph, to have been elected as a member of such
House as a candidate set up by such political party;

(ii) in any other case, be deemed to be an elected


member . of the House who has been elected as such
otherwise than as a candidate set up by any political
party for the purposes of sub-paragraph (2) of this
paragraph or, as the case may be, be deemed to be a
nominated member of the House for the purposes of
paragraph (3) of this paragraph."

It may be pertinent to mention that paragraph of the


above Tenth Schedule provides that disqualification
on the ground of defection shall not apply in case of
split in the original political party if such split consists
of not less than one-third of the members of such
Legislature party. Whereas paragraph 4 thereof lays
down that disqualification on the ground of defection
shall not apply in case of merger of parties. Paragraph
5 thereof exempts the application of ground of
defection to a member holding the office of Speaker,
Deputy Speaker of either of the Houses. It may
further be stated that paragraph 6 provides the
forum for deciding the question of defection by
naming the Chairman of the Upper House and the
Speaker of the Lower House. Whereas paragraph 7
bars the jurisdiction of the Courts in respect of any
matters connected with the disqualification of a
member of a House under the above Schedule.

37. Mr. Syed Sharifuddin Pirzada, learned counsel for


the respondents, also invited our attention to the fact
that in the Constitution of Democratic Socialist
Republic of Sri Lanka, some transitional provisions
were incorporated, which inter alia catered for the
defection. Be that as it may, the question in issue is,
as to whether section 8-B of the Act is violative of any
of the provisions of the Constitution. If it is not, in
that event the fact that India or Sri Lanka have
incorporated provisions for defection in their
Constitutions, will have no consequence.

38. It may be pertinent at this juncture to point out


that subsection (1) of section 8-B of the Act which has
been reproduced hereinabove in para. 31, does not
impose any restriction or constraint on the right of a
member to speak or to vote. It talks of defection or
withdrawal from, the political party by. a member
and provides that in such event the member
concerned shall be disqualified from the date of such
defection or withdrawal from being a member of the
House for the unexpired period of his term as such
member unless he has been re-elected at a bye-
election held after his disqualification. In other words,
it does not divest the right of a disqualified member
from contesting bye-election either as an
independent or as a member of any other political
party which he may have joined. In contrast to the
above provisions, above paragraph 2 not only
provides defection for the reason that a member
voluntarily gives up his membership of the political
party concerned but also on? the ground that if he
votes or abstains from voting in such House contrary
to any direction issued by the political party to which
he belongs or by any person or authority authorised
by it in this behalf, without obtaining in either case
the prior permission of such political party or where
such voting or abstention has not been condoned by
the political party concerned. It is, therefore, evident
that the scope of paragraph 2 of the Tenth Schedule
to the Indian Constitution -is much wider than that of
above subsection (1) of section 8-B of the Act.

39. Mr. Syed Sharifuddin Pirzada, learned counsel for


the respondents, is unable to demonstrate how
section 8-B of the Act is violative of Articles -2A, 4, 14,
17 and 19 of the Constitution. However, he has
referred to page 124 from? the book under the
caption "Reflection on Islam" by Hamoodur Rahman
(former Chief Justice of Pakistan), para. 2 from
Ansari's Report; the case of Hakim Khan and 3 others
v. Government of Pakistan through Secretary Interior
and others PLD 1992 SC 595 and the case of Mst.
Kaneez Fatima v. Wali Muhammad and another PLD
1993 SC 901 in support of his submission that above
section 8-B of the Act is violative of Article 2A of the
Constitution.

It may be stated that page 124 of the above book


"Reflections on Islam", photostat copy of which has
been furnished by the learned counsel" for the
respondents, does not deal with the point in
controversy. It touches upon the question of Islamic
justice.

Whereas para. 2 from the Ansari's Report reads as


follows:--

"2. ??????????The basic responsibility of the Shura


is to oversee and assist the head of the State in
managing the affairs of the State. When the problem
of the land of Sawad came up for discussion before a
meeting of the Shura, Amiral Mumineen Umar (RA.)
said in his opening address that he had called the
meeting to seek their help and consultation for the
discharge of the responsibility of the trust placed on
his shoulders (see Yitab-al-Kharaj by Imam Abu
Yousuf). In the present time this purpose can be
achieved if the members of the Shura were to express
their opinions freely, each one of them feeling
unfettered in the presentation of whatever he,
according to his conscience and insight, considers to
be in the best interest of the country and the nation.
Certainly this is practically impossible under the
present day party system. Every member is
committed to party discipline and votes according to
the dictates of the party leader and the party high
command. Every party appoints a Chief Whip whose
duty is to control the party members and, when
needed, to get the members herded in the House,
and makes them raise their hands according to the
party's directives. It so happens sometimes that the
members exercise their vote even without knowing
what the subject under discussion was. Such practices
are highly incompatible with the Islamic teachings
which consider advice a trust. The Prophet has clearly
said "whoever is consulted is a trustee. Therefore, he
should give his advice in the same spirit of sincerity
and good-will which motivates him in the conduct of
his own affairs'."

In the above two reports, this Court has held that


Article 2A which incorporates Objectives Resolution
as a part of the Constitution, cannot be treated as a
provision supra-Constitutional, but is a provision at
par with the other provisions of the Constitution.

On the other hand, Mr. Khalid Anwer, learned counsel


for the appellant, has invited our attention to the
objectives Resolution which has become part of the
Constitution by virtue of above Article 2A of the
Constitution as pointed out hereinabove, which inter
alia provides that the sovereignty over the entire
Universe belongs to Almighty Allah alone and the
authority to be exercised by the people of Pakistan
within the limits prescribed by Him is a sacred trust
arid that the State shall exercise its powers and'
authority through the chosen representatives of the
people. According to him, if a member is erected by
the voters on the basis of a ticket awarded by a
political party, he commits breach of trust if he
defects or withdraws from such political party
without obtaining fresh mandate from the voters. In
furtherance of his above submission he has invited
our attention to the relevant portions of and also to
some Hadith from the book "Al-Hadis" in English
translation of commentary of Mishkat-ul-Masabih by
Alhal Maulana Fazlul Karim. It win suffice to
reproduce the relevant portions of the English
translation of the above Surahs, Which read as
follows:--
91. ??????????Fulfil the covenant of Allah when ye
have covenanted, and break not your oaths after the
asseveration of them, and after ye have made Allah
surety over you. Lol Allah knoweth what ye do."

77. ??????????Lo! those who purchase a small gain


at the cost of Allah's covenant and their oaths, they
have no portion in the Hereafter. Allah will neither
speak to them nor look upon them on the Day of
Resurrection, nor will He make them grow. Theirs will
be a painful doom."

27. ????????????????????????????O ye who


believe! Betray not Allah and His Messenger, nor
knowingly betray your trusts."

40. The above-quoted par,. 2 from Ansari's Report is


to be viewed keeping in mind that majority members
of Ansari Commission were of the view that political
parties system does not fit in with the concept of
Islamic State. The above par,. 2 is to be read with
para. 8 of the above Report, which reads as follows:--
"8.Since the basic objective of every polities party is
to capture power, it tends to make consciously or
subconsciously every efforts, and resorts to all
possible tactics to grab power. It
provokes every variety of regional, tribal, linguistic
and even _.. (full not supplied)."

41. Hamoodur Rahman, former chief Justice of this


Court, in his paper under the caption "The Concept of
State in Islam" published in Journal Part of PLD 1979
at pages 1 to 19, also suggested the Presidential form
of Government. In that context, he observed that a
member once elected should function as an
independent member and not to be tied to any
political party or its programme. So long as we have
parliamentary form of Government, it cannot be run
unless the members of the Assemblies are subject to
party discipline. The above-quoted portions of the
aforesaid Surahs, on the contrary, indicate that a
betrayal of trust reposed in a person is a sin and,
therefore, if a member takes votes on the
representation that he belongs to a particular political
party which projects certain objects in its manifesto
and then for personal gains he defects or withdraws
from such political party, he commits breach of trust
in terms of the above Surahs. Neither the above two
judgments of this Court nor section 4 of the above
Act, in any way advances the case of the respondents.

42. As regards Articles 4, 14 and 19 of the


Constitution, it may be stated that Article 4 provides
right of an individual to be dealt with in accordance
with law. Article 14 lays down that dignity of man and
subject to law, the privacy of whom, shall be
inviolable. Whereas Article 19 provides freedom of
speech subject to reasonable restrictions imposed by
law. None of the above Articles is attracted to if
section 8-B of the Act has been competently enacted.

43. Reverting to Article 17 of the Constitution which


guarantees freedom of association, it may be stated
that clause (1) thereof provides that every citizen
shall have the right to form association or unions
subject to any (. reasonable restrictions imposed by
law in the interest of sovereignty or L integrity of
Pakistan, public order or morality. Admittedly section
8-B of the Act does not, in any way, impinge the rights
guaranteed by above clause (1).
Clause (2) of aforesaid Article 17 lays down that every
citizen not being in the service of Pakistan shall have
the right to form or to be a member of a political
party subject to reasonable restrictions imposed by
law in the interest of sovereignty and integrity of
Pakistan etc.

44. There are three recent judgments on the


construction of above Article 17 of the Constitution
rendered by this Court, namely, the case of Miss
Benazir Bhutto v. Federation of Pakistan and another
P L D 1988 SC 416, the case of Mrs. Benazir ~Bhutto
and another v. Federation of Pakistan and another P L
D 1989 SC 66 and the case of Mian Muhammad
Nawaz Sharif v. President of Pakistan and others P L D
1993 SC 473.

In the first case, Miss Benazir Bhutto impugned


through a Constitution petition under Article 184(3)
of the Constitution certain provisions of the Political
Parties Act relating to registration of political parties
for violation of Article 17(2) of the Constitution. The
impugned provisions were struck down on the ground
of violation of above Article. Muhammad Haleem,
C.J., Nasim Hasan Shah and Zaffar Hussain Mirza, 33.
in their opinions emphasised the importance of the
existence of political parties in a Parliamentary form
of Government as under besides the other learned
Judges, who also appended their separate notes:--

"A political party has its significance in the context of


the political system provided by the Constitution. Our
Constitution is of the pattern of Parliamentary
democracy with a Cabinet system based on party
system as essentially it is composed of the
representatives of a party which is in majority.
Bagehot called it `a hyphen that joins, a buckle that
fastens, the executive and legislative together'. It
formulates the general policy of the Government and
is collectively responsible to the Parliament for that.
Apart from this general function of coordination and
leadership, it exercises actual executive and
legislative functions. (Basu's Commentary on the
Constitution of India, Third Edn., Vol. 1, p.459.

Parliamentary Government is a Government of the


party and a party Government is a vital principle of a
representative Government. The political party is a
connecting link between the Executive and the
Legislature, between the Cabinet and the Parliament.
It is also a connecting link between the Cabinet and
the people and between the necessary and important
features in a Parliamentary democracy. They are
important because the group victorious at a general
election becomes the- Government. In a nutshell a
Parliamentary democracy depends for its success on
the organization of political parties and its disciplined
support of Parliamentary majority is sine qua non of
Cabinet Government composed of the Prime Minister
and the Ministers from the majority party. They thus
provide leadership to public offices through the
elections. They are now necessary part of a
democratic Government. Rival parties make elections
meaningful by giving voters a choice among
candidates who represent different interests and
points of view. The party or parties that are out of
power serve as a `loyal opposition' as understood in
Parliamentary democracy. That is, they criticise
policies and actions of the party in power. In this way
the party in power is called on to justify its actions
and is made responsible to the people."
"Persons elected to the Legislature in their personal
capacities have hardly any importance. They just toss
around on the political scene, rudderless and without
a destination. It is only when they band? themselves
into a group, as a party, that they become a force
exercising some influence by their activities. It is only
as members of a political party and not as individual
members of the legislature; can they achieve their
objectives. As observed by Cornelius, CJ. in Maulana
Maudoodi's case (aforesaid at p.692) a `political party
has a right to exert itself using all available channels
of mass communication to propagate its views in
relations to the whole complex of the administrative
machine including the legislatures, in respect of
matters which appear to it to require attention for
the amelioration of conditions generally throughout
the nation, for improvements particularly in
administrative procedures and policies as well as in
the legislative field, even to the extent of proposing
and pressing for amendment of the Constitution
itself.
Indeed, our very State of Pakistan itself could never
have come into existence if a political party (the
Muslim League) was not allowed to. function as a
party, without let or hindrance. As early as in 1942 in
a speech made by the Quaid-e-Azam at a reception in
Delhi on the occasion of his birthday on 25th
December, he said:

"The elimination of a political party from contesting


election was considered by the learned Attorney-
General as no invasion on the fundamental right
conferred under Article 17(2), because despite refusal
to register a party or the cancellation of its
registration, it will still exist as a party until it is
dissolved under section 6. This argument overlooks
the very basis of the system of Government providing
for Parliamentary democracy, in which various parties
in the country are formed with a view to capture the
seat of power in order to implement the policy and
programme which they consider beneficial for the
progress and advancement of the country. Under the
Constitution the achievement of this objective is
through the means of election. Therefore, if a political
party is barred and kept away from the election, its
existence would hardly remain meaningful and
effective. It may be pointed out that Article 17 f 2)
does not guarantee a right to form a party but a
`political' party. Consequently the right to contest the
election to the National and Provincial Legislatures is
inherent in the right guaranteed. Depriving a party of
its right to participate in election would be its virtual
dissolution."

In ,the second case, Mrs. Benazir Bhutto and another


challenged section 21 of the Representation of the
People Act, 1976, as amended by Ordinances Il and
VIII of 1985, through a Constitution petition filed
under Article 184(3) of the Constitution on the
ground that it failed to ,recognise the existence and
participation of the political parties in the process of
election particularly in the matter of allocation of
symbols by providing allocation of symbols to
individuals. The same was allowed as under:--

?our, conclusion therefore ,, is that section 21 of the


Act as amended by Ordinances Nos.II and VIII of 1985,
is violative of Fundamental Right contained in Article
17(2) of the Constitution in so far as, it fails to
recognize the existence and participation of the
Political Parties in the process of elections,
particularly in the matter of allocation of symbols and
is for that reason void to that extent. Every Political
Party is eligible to participate in the Elections to every
seat in the National and the Provincial Assemblies
scheduled to be held on the 16th of November, 1988.
The Political Parties shall be entitled to avail of the
provisions of sub-mile (2) of Rule 9 of the Rules to
seek allotment of any of the prescribed symbols. Both
the petitions are allowed in these terms leaving the
parties to bear their own costs. Federal Government
shall pay a fee of Rs.5,000 each, to two amicus curiae
Mr. Ali Ahmed Fazeel and Mr. S.M Zafar.?

In the third case, dissolution of the National'


Assembly and the dismissal of the Prime Minister and
hip Cabinet under Article 58(2)(b) of the Constitution
by the President was challenged. By majority of ten to
one, it was held that the above action was violative of
inter alia Article 17(2) of the. Constitution and again
emphasis was given to the importance of political
party. It will suffice to reproduce from the opinion of
Nasim Hasan Shah, C.J. the following observations:-
"Accordingly, the basic eight `to farm to be a member
of a political party' conferred by Article 17(2)
comprises the right of that political party not only to
form a political party, contest elections under its
banner but also, after successfully contesting the
elections, the right to form the Government if its
members, elected to that body, are in possession of
the requisite majority. The Government of the
political party so formed must implement the
programme of the political party which the electorate
has mandated it to carry into effect. Any unlawful
order which results III frustrating this activity, by
removing it from office before the completion of its
normal tenure would, therefore, constitute an
infringement of this Fundamental Right."

45. The parties are not at issue on the question that


floor-crossing which has been now known in this part
of the world as "horse-trading", is an evil a: generally
the members of the Assemblies crow the hour not on
account of any principled stand on issues of national
importance, but they are prompted to de so for
personal gains either in the form of an office of
Minister or other worldly gains. Both the main parties
in Pakistan in their election manifestos of? 1993
promised to eliminate the above evil. The relevant
portions of their manifestos read as follows:.-
P.P.P's. manifesto of 1993 Elections

"POLITICAL PARTIES ACT will be made effective to


ensure an end to floor-crossing and horse-trading so
that, once elections are over, a letter from the Leader
of the Parliamentary Party will automatically
disqualify a member."

P.M ,.(N.)'s manifesto of 1993 Elections:

"To firmly establish democratic institutions and


healthy traditions so that all future change, of
Government take place only through periodic
elections, floor-crossings by elected representatives
are prohibited and the elected opposition is given full
recognition to play its due role in the National
Parliament and the Provincial Assemblies. The
essence of democracy lies in political pluralism."
46. Mr. Syed Sharifuddin Pirzada has invited our
attention to the case of Pakistan through Secretary,
Cabinet Division, Islamabad and others v. Nawabzada
Muhammad Umer Khan (deceased) now represented
by Khawaja Muhammad Khan, of Hod and others
1992 S C M R 2450, in which Shafiur Rahman, J.
quoted a passage from the opinion of Lord Denning
M.R. in the case of. Bromley London Borough Council
v. Greater London Council and another (1982) 2
Weekly Law Report 62, wherein Lord Denning pointed
out that a manifesto is issued by a political party in
order to get votes and, therefore, it is not to be taken
as gospel and that it is not regarded as a bond,
signed, sealed and delivered. The ratio of the above
observations seems to be that a political party is free
to modify its manifesto or not to put into operation
those provisions which are quite unworkable or
impossible. The above observations do not, in any
way, militate against the fact that both the above
main political parties were conscious of the factum
while framing their manifestos that floor-crossing was
an evil. It is, therefore, evident that section 8-B of the
Act is in line with the above-quoted portions of the
manifestoes of the two main political parties of
Pakistan. I have had the occasion to comment on the
above aspect in my opinions in the case of Federation
of Pakistan through Secretary, Ministry ,of Law,
Justice and Parliamentary Affairs, Islamabad and
others v. Mr. Aftab Ahmed Khan Sherpao. PLD 1992
SC 723 and in the case of Sardar Muhammad -
Muqeem Khoso v. President of Pakistan P L D 1994 SC
412 as follows:--

"Observation in the case of Mr. Aftab Ahmed Khan


Sherpao

If a Government, in order to remain in power, has to


purchase the loyalties of the M.P.As. by allotting plots
or granting other benefits in cash or kind at the cost
of the public exchequer and/or is to induct them as
Ministers and Advisors for the above purpose, in my
humble view, it cannot be said that the Government
is being carried on in accordance with the provisions
of the Constitution."
Observation in the case of Mr. Sardar Muhammad
Muqeem Khoso:
"36.1 may point out that under the Objectives
Resolution which has now become substantial part of
the Constitution of the Islamic Republic of Pakistan,
1973 (hereinafter referred to as the Constitution) by
virtue of Article 2-A thereof, sovereignty over the
entire Universe belongs to Almighty Allah alone, and
the authority to be exercised by the people of
Pakistan through their chosen representatives within
the limits prescribed by Him, is a sacred trust. Any
abuse of position on the part of a chosen
representative will amount to breach of the above
sacred trust entailing heavenly and worldly
punishment. The aforesaid Acts IV and V of 1977 and
the President Order 16 of 1977 and the Order (i.e.
P.O. 17 of 1977) were designed and intended to curb
and discourage the tendency on the part of public
representatives to exploit their position as such for
their personal gains. Unfortunately the above
statutory provisions, which are for public good in
order to ensure unadulterated and incorrupt
democracy, have not been effectively enforced and
given effect, with the result that some of the public
representatives become purchasable commodity and
they change loyalty for monetary and other gainful
considerations and thereby commit breach of the
mandate of their voters and the political party to
which they belong. This. betrayal of trust is now
popularly known as horse-trading. This cancerous
disease in the polity of our country is contributing a
lot in destabilizing the democratic institutions and
thereby adversely affecting the economic growth of
the country besides affecting the good name of the
country adversely in the comity of nations. The above
tendency is to be checked and discouraged at all
levels."

47. It may not be out of context to mention that my


above latter judgment was affirmed by a Full Bench of
this Court consisting of Shafiur Rahman, Abdul
Qadeer Chaudhry, Saleem Akhtar, Saeeduzzaman
Siddiqui and Wali Muhammad Khan, JJ. in the case of
Rai Rashid Ahmed Khan v. President of Pakistan P L D
1994 SC 36.

Shafiur Rahman, J. in the case of Khawaja Ahmad


Tariq Rahim v. The Federation of Pakistan through
Secretary, Ministry of Law and Parliamentary Affairs,
Islamabad and another P L D 1992 SC 646 has made
the following classic observations on the question of
defection which were reiterated in the case of Mian
Muhammad Nawaz Sharif (supra):--

"The preamble to our Constitution prescribes that


`the State shall ????exercise its powers and
authority through the chosen representatives of the
people'. Defection of elected members has many
vices. In the first place, if the member has been
elected on the basis of a manifesto, or on account of
his affiliation with a political party or on account of
his particular stand on a question of public
importance, his defection amounts to a clear breach
of confidence reposed in him by the electorate. If his
conscience dictates to him so, or he considers it
expedient, the only course open to him is to resign, to
shed off his representative character which he no
longer represents and to fight a re-election. This will
make him honourable , politics clean, and emergence
of principled Leadership possible The pond and more
important, the political sovereign is rendered helpless
y such betrayal of its own representative. In the
normal course, the elector has to wait for years, till
new elections take place to repudiate such a person.
In the meantime, the defector flourishes and
continues to enjoy all the worldly gains. The third is
that it destroys the normative moorings of the
Constitution prescribe that `sovereignty over the
entire universe belongs to Almighty Allah alone, and
the authority to be exercised by the people of
Pakistan within the limits prescribed by Him is a
sacred trust' and the State is enjoined to `exercise its
powers and authority through the chosen
representatives of the people'. An elected
representative who detects his professed cause, his
electorate , his party, his mandate, destroys his own
representative character. He cannot on the mandated
Constitutional prescription participate? . In the
exercise of State power and authority. Even by. purely
secular standards carrying on of the Government in
the face of such defections, and on the basis of such
defections, is considered to be nothing but `mockery
of the democratic Constitutional process'."

48. We may now refer to the case-law and some of


the treatises on the subject referred to by the learned
counsel for the parties.
Mr. Syed Sharifuddin Pirzada, learned counsel for the
respondents, has referred to the case of
Amalgamated Society of Railway Servants v. Osborne
1910 AC 87, the case of Shri Kihota Hollohon v.
Zachilhu and others A I R 1993 SC 412; equivalent to
1992 Suppl. (2) SC 651, Our Constitution Defaced and
Defiled by NA. Palkhivala, Constitutional Reform,
Reshaping the British Political System, by Rodney
Brazier, Parliament by Sir Ivor Jennings, and para. 19
of the report of the Constitution Commission
Pakistan, 1961, wherein S. Winston Churichill's
remarks about the duties of a member of Parliament
have been reproduced.

On the other hand, Mr. Khalid Anwer, learned counsel


for the appellant, besides relying upon the above
judgment of the Indian Supreme Court in the case of
Shri Kihota Hollohon (supra), has relied upon the case
of Ben F. Ray v. Edmund Blair 343 U.S. 214, and
Constitutional Law of India, 3rd Edition by Servai.

In the above first case cited by Mr. Syed Sharifuddin


Pirzada, the question before the House of Lords was,
whether a rule which purports to confer on a trade
union registered under the Act of 1871, a power to
levy contribution from its members for the purpose
of securing Parliamentary representation was ultra
vires. The House of Lords affirmed the decision of the
Court of Appeal and held that the above rule was
ultra vires. However, Lord Shaw of Dunfemline also
commented upon the undertaking which the Labour
Party used to obtain from a candidate of the
Parliament though not member of the party for its
support in the elections as under:-.

"In brief, my opinion accordingly is: The proposed


additional rule of the society that 'all candidates shall
sign and respect the conditions of the Labour Party,
and be subject to their `whip' the rule that candidates
are to be `responsible to and paid by the society',
and, in particular, the provision in the constitution of
the Labour Party that `candidates and members must
accent this Constitution, and agree to abide by the
decision of the Parliamentary party in carrying out the
aims of this Constitution', are all fundamentally
illegal, because they are in violation of that sound
public policy which is essential to the working of
representative Government.
Parliament is summoned by the Sovereign to advise
His Majesty freely. By the nature of the case it is
implied that coercion, constraint, or a money
payment, which is the price of voting at the bidding of
others, destroys or imperils that function of freedom
of advice which is fundamental in the very
Constitution of Parliament. Inter alia, the Labour
Party pledge is such a price, with its accompaniments
of un ?Constitutional and illegal constraint or
temptation.

Further, the pledge is an un-Constitutional and


unwarrantable interference with the rights of the
constituencies of the United Kingdom. The Corrupt
Practices Acts, and the proceedings of Parliament
before such Acts were passed, were but machinery to
make effective the fundamental rule that the
electors, in the exercise of their franchise, are to be
free from coercion, constraint, or corrupt influence;
and it is they, acting through their majority, and not
any outside body having money power, that are
charged with the election of a representative, and
with the judgment on the question of his continuance
as such."

It may also be advantageous to reproduce paras. 38,


44 and 53 from the majority view from the case of
Mhoto Hollohan v. Zachillhu 1992 Suppl. (2) SCC,
which read as follows:--

"38. The argument that the un-Constitutional


remedies against the?
?????????????????immorality and unprincipled
chameleon -- like changes of political hues in pursuit
of power and pelf suffer from something violative of
some basic features of the Constitution, perhaps,
ignores the essential organic and evolutionary
character of a Constitution and its flexibility as a living
entity to provide for the demands and companions of
the charging times and needs. The people of this
country were not beguiled into believing that the
menace of unethical and unprinciple? changes of
political? affiliation is something which the law is
helpless against and is to endured as a necessary
concomitant of freedom of conscience. The
onslaughts on their sensibilities by the incept
unethical political defections did not dull their
perception of this phenomenon as a esker eating into
the vitals of those values that make democracy a
living and worthwhile fault. This is pre-eminently an
area where Judges should defer to legislative
perception of and reaction to the pervasive dangers
of unprincipled defections to protect the community.
'Legislation may begin where an evil begins'. Referring
to the judicial philosophy of Justice Holmes in such
areas, Pohlman again says:--

A number of Holme's famous aphorisms point in the


direction that Judges should defer when the
Legislature reflected the pervasive and predominant
values and interests of the community. He had, for
example, no `practical' criterion to go on except `what
the crowd wanted'. He suggested, in a humorous vein
his epitaph ... No Judge ought to interpret a provision
of the Constitution in a way that would prevent the
American people from doing what it really wanted to
do. If the general consensus was that a certain
condition was an `evil' that ought to be corrected by
certain means, then the Government had the power
to` do it. `Legislation may begin where an ' evil
begins'. `Constitutional law like other mortal
contrivances has to take some chances'. Some play
must be allowed to the joints if the machine is to
work'. All of these rhetorical flourishes suggest that
Holmes deferred to the Legislature if and when he
thought it accurately mirrored the abiding beliefs,
interests, and values of the American public.

44. ??????????But a political party functions on the


strength of shared beliefs. Its own political stability
and social utility depends oh such shared beliefs and
concerted action of its members in furtherance of
those commonly held principles. Any freedom of its
Members to vote as they please independently of the
political party's declared policies will not only
embarrass its public image and popularity but also
undermine public confidence in it which, in the
ultimate analysis, is its source of sustenance --may,
indeed, its very survival. Infra-party debates are of
course a different thing. But a public image of
disparate stands by asked upon, in political tradition,
as a desirable state of things'.
53. Accordingly we hold:--

That the paragraph 2 of the Tenth Schedule to the


Constitution is valid. Its provisions do not suffer from
the vice of subverting democratic rights of elected
Members of Parliament and the Legislatures of the
States. It does not violate their freedom of speech,
freedom of vote and conscience as contended.

The provisions are salutary and are intended to


strengthen the fabric of Indian Parliamentary
democracy by curbing unprincipled and unethical
political defections.

The contention that the provisions of the Tenth


Schedule, even with the exclusion of paragraph 7,
violate the basic structure of the Constitution in that
they -affect the democratic rights of elected
Members and, therefore, of the principles of
Parliamentary democracy is unsound a pd is
rejected."

It may be pertinent to mention that earlier a Full


Bench of Punjab and Haryana High Court, comprising
the learned Chief Justice and four companion Judges,
in the case of Parkash Singh Badal and others v. Union
of India and others A I R 1987 Punjab and Haryana
263, held that above paragraph 2 of the Tenth
Schedule to the Indian Constitution was intra vires
and that it was not destructive of the basic structure
or democratic set-up of the Constitution.

NA. Palkhivala in his above treatise has adversely


commented as under on the Constitution (Thirty-
Second Amendment) Bill, 1973, which' was then
pending in the Indian Parliament for providing for
defection. The above bill was passed as the defection
law has been provided by the Constitution (Fifty-
Second Amendment) Act, 1985:

"The Constitution (Thirty -Second Amendment) Bill,


1973, which is pending before Parliament, has some
provisions which deal with defections. If a member of
a Legislature voluntarily gives up his membership of
the political party by which he was set up as a
candidate, he is to be disqualified for continuing as a
member of the Legislature, even though he may
resign from the party on honest grounds, e.g. when
the party goes behind or fails to implement the
manifesto on the basis of which it won seats in-the
Legislature.

But the truly savage part of the Bill is another


provision which has nothing to do with defections
and which seeks to enact that if a member votes or
abstains from voting in the House `contrary to any
direction issued by such political party or by any
person or authority authorised by it in this behalf
without obtaining prior permission of such party,
person or authority', he would incur the extreme
penalty of disqualification."

Rodney Brazier at page 48 in his above treatise has


made the following observation:--

"Once returned to the House of Commons the


Member's party expects him to be loyal. This is not
entirely unfair or improper, for it is the price of the
party's label which secured his election."

Whereas at page 52 he made the following


suggestion to remedy the defection:--
"Constituents should be given a recall power so that it
a given portion of voters in a constituency wanted to
force their member to fight a bye-election, they could
vote to do so, and if the necessary votes were
achieved, his seat would be vacated."

It may be observed that Sir Ivor Jennings it. him above


treatise discussed a the question of casting votes by a
member of the Parliament against the direction of his
party. With reference to Labour Party, he pointed out
that the National Executive Committee of the said
party does not endorse the candidature of such a
member for the next election, which is one of the
means to discourage defection. Para. 19 from the
Report of the Constitution Commission, Pakistan
reads as follows:--

"(19)Sir Winston Churchill is reported to have


described the duties of a member of Parliament as
follows:--

The first duty of a Member of Parliament is to do


what he thinks in his faithful and disinterested
judgment is right and necessary for the honour and
safety of Great Britain. His second duty is to his
constituents, of whom he is the representative but
not the delegate. Burk's famous declaration on this
subject is well-known. It is only in the third place that
his duty to the party organisation or programme
takes rank. All these three loyalties should be
observed, but there is no doubt of the order in which
they stand under any healthy manifestation of
democracy."

In the case of Ben F . Roy? v Edmund Blair supra) cited


by r. Klialid Anwer, the facts were that the
Democratic Party of Alabama State while? exercising
State-delegated authority? obtaining for obtaining
pledge from the candidates for electoral college for
the President, etc. the respondent Edmund Blau
declined to give the above pledge. Consequently, the
executive committee of the Democratic Party refused
to certify him as candidate for electoral college.
Edmund Blair challenged the above provision in the
Supreme Court of Alabama, which upheld his
contention and held that the pledge requirement was
void as violative of the Twelfth Amendment.
However; upon appeal to the U.S. Supreme Court, the
majority upheld the above provision for the following
reasons:--

"A state's or a political party's exclusion of candidates


from a party primary because they will not pledge to
support the- party's nominees is a method of securing
party candidates in the general election, pledged to
the philosophy and leadership of that party. It is an
exercise of the State's right to appoint electors in
such manner, subject to possible Constitutional
limitations, as it may choose. U.S. Const., Article 2,
section 1. The fact that the primary is a? part of the
election machinery is immaterial unless the
requirement of pledge violates some Constitutional
or statutory provision. It was the violation of a
secured right that brought about the Classic and
Alright decisions. Here they do not apply unless there
was a violation of the Twelfth Amendment by the
requirement to support the nominees of the National
Convention.

Secondly, we consider the argument that the Twelfth


Amendment demands absolute freedom for the
elector to vote his own choice uninhibited by a
pledge. It is true that the Amendment says the
electors shall vote by ballot. But it is also true that the
Amendment does not prohibit an elector's
announcing his choice beforehand, pledging himself.
The suggestion that in the early elections candidates
for electors --contemporaries of the Founders--would
have hesitated, because of Constitutional limitations,
to pledge themselves to support party nominees in
the event of their selection as electors is impossible
to accept. History leaches that the electors were
expected to support the party nominees. Experts in
the history of Government recognize the long-
standing practice. Indeed, more than twenty States
do not print the names of the candidates for electors
on the general election ballot. Instead in one form or
another they allow a vote for the presidential
candidate of the national conventions to be counted
as a vote for his party's nominees for the electoral
college. This long ?continued practical interpretation
of the Constitutional propriety of an implied or oral
pledge of his ballot by a candidate for elector as to his
vote in the electoral college weighs heavily in
considering the constitutionality of a pledge, such as
the one here required, in the primary."

N.H. Servai in his above treatise has very exhaustively


dealt with the question of defection. He has
condemned the above practice and pointed out that
defections in India generally take place because
political support is sold for money or for promise of
ministership or public office and that the defector
may defect again for more money and promise of
more important ministership or public office. He
termed it as an odious form of political corruption. It
will be pertinent to reproduce the following* portion
from para. 47 of his above
?????????????????treatise, wherein he has
made suggestion in line with the above impugned
subsection (1) of section 8-B of the Act:--

"47. ???????Can defections be prevented by law and


yet the right to dissent be protected in the framework
of the kind of democratic Government which our
Constitution has set up. Bearing in mind the rich
harvest reaped by defectors by `toppling'
Governments, it is obvious that if defections were
penalised by law, the law may be circumvented by
the simple device of potential defectors obtaining
from voting for their party and thus bringing about its
downfall (compendiously called `abstention'). It is a
matter of common knowledge that in important
matters a 3 line whip is issued and is expected to be
obeyed in any matter which Government considers of
great importance and which is made a matter of
confidence, or on a motion of confidence or of no
confidence (`matters of confidence') the members of
the ruling party must support the Government by
their votes if Government is to survive. In principle,
there is no difference between securing the defeat of
Government by leaving the party and/or joining one
or more of the Opposition parties and bringing about
its downfall by abstention. Any anti-defection Bill
must equate abstention with defection. Questions as
to the circumstances under which abstentions take
place must be avoided, because having regard to the
kind of defections which take place in our country, a
simple rule doing rough justice must be adopted if
defections, with their attendant evils, are to be
effectively prevented. Discussing the topic of
defections in 1971 and 1978, the present writer
suggested that the mainspring of defection would be
broken if a person who left the party or joined
another party was obliged to resign. If he did not, his
seat was to be declared vacant."

49. The above three judgments rendered by this


Court in the case of Miss Benazir Bhutto (supra), in
the case of Mrs. Benazir Bhutto (supra) and in the
case of Mian Muhammad Nawaz Sharif (supra) are
classic example of progressive interpretation of a
Constitutional provision relating to the Fundamental
Right to form an association or a political party and to
become its member (i.e. Article 17). In the above first
case, it has been emphasised that our Constitution is
of the pattern of Parliamentary democracy with a
Cabinet system, which system cannot run without
having political parties. In other words, the existence
of political parties is sine qua non for operating
Parliamentary democracy. It has also been
highlighted therein that according to Bagehot a
political party is `a hyphen that joins, a buckle that
fastens, the Executive and Legislature together'. It has
been further pointed out that a Parliamentary
Government is a Government of a political party, the
latter is a connecting link between the Executive and
Legislature between the Cabinet and the Parliament.
It has also been held that persons elected to the
Legislature in their personal capacities generally do
not have any importance as they cannot implement
any manifesto without the support of the political
party in power. It has been further held that the right
to form a political party guaranteed under Article
17(2) also impliedly guarantees the right of a political
party to contest elections of the National and
Provincial Legislature. So, in the first case the
cumbersome provision in the Political Parties Act
requiring registration of political parties upon
fulfilment of certain conditions contained therein in
order to qualify to participate in elections was held
violative of the above Article. In the above second
case, this Court has gone a step further by holding
that a political party is not only entitled to participate
in elections through its candidates but is also entitled
to contest elections under one symbol -and the
statutory rule contrary to it was ultra vires the above
Article. In the aforementioned third case, further
broader construction was placed on above Article 17
of the Constitution by holding that the right of a
political party, commanding majority, in the Assembly
concerned to form Government includes the right to
complete its normal tenure unless terminated earlier
in accordance with the provisions of the Constitution
and termination of the normal tenure earlier without
justifiable legal reason will be violative of Article 17(2)
of the Constitution.

50. There seems to be preponderance of view that


defection for worldly i gains by a member of an
Assembly is destructive to the Parliamentary form of
Government. Shafiur Rahman, J. in the case of
Khawaja Ahmed Tariq Rahim M (supra) has
highlighted that defection by an elected member
amounts to clear breach of confidence reposed in him
by the electorate, it destroys the normative moorings
of the Constitution and it is nothing but mockery of
the democratic Constitutional process. In the case of
Sardar Muhammad Muqeem Khoso (supra), I pointed
out that Acts IV and V of 1977 and the President
Orders 16 and 17 of 1977 were designed and
intended to curb and discourage the tendency on the
part of public representative to exploit their position
as such for their personal gains. It was further pointed
out that the above statutory provisions which are for
public good in order to ensure unadulterated and
incorrupt democracy have not been effectively
enforced and given effect, with the result, that some
of the public representatives become purchasable
commodity and they change loyalty for monetary and
other gainful considerations and thereby commit
breach of the mandate of their voters and the
political party to which they belong and that this
betrayal of trust is now popularly known as horse-
trading.

The Indian Supreme Court in the majority view in the


case of Kihoto Hollahan (supra) has described
defection "as a canker eating into the vitals of those
values that make democracy a living and worthwhile
faith". They found that paragraph 2 of the Tenth
Schedule to the Constitution, which prohibits
defection including voting against the direction of the
political party, "does not suffer from the vice of
subverting democratic rights of elected members of
Parliament and the Legislatures of the States". They
also held that "the provisions are salutary and are'
intended to strengthen the fabric of Indian
Parliamentary democracy by curbing unprincipled and
unethical political defections".

N.H. Seravai on Constitutional Law of India, 3rd


Edition (supra) condemns the practice of defection
and has observed that defection should include
abstention to vote by a member against his defects
should be made to resign.

Rodney Brazier in his aforesaid treatise has observed


that "once returned to the House of Commons the
Member's party expects him to be loyal", which
according to him "is not entirely unfair or improper
for it is the price of the party's label which secured his
election". The majority of the Judges of the Supreme
Court of United States in the ease of Ben F. Ray ..
Edmund Blair (supra) held that the requirement of
the Democratic Party of Alabama State that a
candidate for electoral college should sign a pledge to
vote to the Party's candidates for Presidential and
Vice-President's elections before certification of his
candidature by the party was not violative of any
Constitutional right.
51. The case of Amalgamated Society of Railway
Servants (supra) relied upon by Mr. Syed Sharifuddin
Pirzada in which one of the Lords, namely, Lord Shaw
observed that additional rule of the Labour Party
requiring that "all candidates shall sign and respect
the conditions of the Labour Party, and be subject to
their whip", the rule that candidates ate tote
"responsible to anti paid by the society", and in
particular the provision in the constitution of the
Labour Party that "candidates and members must
accept this constitution, and agree to abide by the
decision of the parliamentary party in carrying out
aims of this Constitution "are fundamentally illegal
because they are in violation of That sound public
policy which is essential to the working of
representative Government", are to be viewed with
reference to the controversy which was in issue, in
the above case, namely, whether the Labour Party
could frame a rule empowering itself to levy
compulsory contribution from its members for the
purpose of securing Parliamentary representation by
supporting candidates who may even not be
members of the Party which was found ultra vires.
Most of the Lords did not express their views about
the above undertaking. It should also not be
overlooked that in England the concept of Parliament
is different. The Parliament is summoned to advise
His or Her Majesty freely. This concept is foreign to
our Parliament.

It is also true that NA: Palkiwala in his above treatise


has adversely commented on the (Thirty- Second
Amendment) Bill, 1973, relating to defection which
was then pending (which was not passed) particularly
the right to control voting in the Assembly by
members. The learned author has dealt with the
question of defection on academic plane on the
assumption that the members of the Assemblies do
not indulge in above unprincipled/unethical vice of
horse-trading for worldly gains and, therefore, the
same" is not germane to the evil of horse-trading,
which is intended to be eliminate by section 8-B of
the Act.

Mr. Sir Ivor Jerning, in his above treatise has riot in


any way advocated the defection of the type with
which we are dealing in the present case. He has
pointed out the practice obtaining in the Labour Party
of England, namely, they do not endorse candidature
of a member for next election, which voted against
the direction of the Party

52. It may be observed that there cannot be any cavil


to the proposition propounded by Sir Winston
Churchil that first duty of a Member of Parliament is,
to work for the honour and safety of Great Britiat.
Second duty he owes to his constituents to whom he
presents arid third duty he owes to his party
organization or programme r! may iota pointed out
that in term of above clause (2) of Article 17 of the
Constitution read with the relevant provision of the
Act, a political pasty acting in a manner prejudicial to
the sovereignty or integrity of Pakistan is liable to be
banned So, honour and safety of Pakistan is foremost
important for the members of the Assemblies.

It is equally correct that a member owes second duty


to his constituents as he represents them and,
therefore, he is expected to protect their interest. For
example, if his party wishes that he should vote
against legal and just right/interest of his
constituents, he may decline to do so. In my view it a
member votes for the above two objectives, even
against the direction of his party, he cannot be held
guilty of defection under section 8-B of the Act,
particularly keeping in view the wordings of the same.
The above section 8-B as pointed out earlier in para.
38 hereinabove speaks of withdrawal or defection N
from the political party to which he belongs and it
does not place any embargo N on the right of a
member to speak or to vote according to his
conscience on issues of national' importance.
However, it may be pointed out that he owes a duty
to his party to vote in its favour in case of vote of no-
confidence or vote of confidence. If he votes against
his party or abstains to vote in its favour or indulges
in activities detrimental to the interest of his party
with the intention to facilitate toppling of his party's
Government or to prevent it from forming
Government, the same will be piece of evidence to
prove the factum that the member concerned has
withdrawn/defected from his party in contravention
of section 8-B(1) of the Act.

In my view section 8-B of the Act does not its any way
violate Articles 17 or 19 of the Constitution as was
urged by Mr. Sharifuddin Pirzada and supported by
Mr. Abdul Sattar Najam, learned Advocate .General
Punjab,? but in fact it is intended and designed to
strengthen and reinforce the? parliamentary form of
Government which is the system of Government
adopted by our Constitution as contended by Mr.
Khalid Anwar and supported by Mr. Yakoob K.
Eusufzai, learned Advocate-General, Balochistan.

At this juncture, I may deal with Mr. Faqir


Muhammad Khokhar. Deputy Attorney-General's
submission that section 8-B of the Act is
discriminatory as it is not applicable to independent
members of the assemblies and, therefore, is
violative of Article 25 of the Constitution. It will
suffice to observe that since independent members
are not elected on the basis (0 of political parties'
tickets, but are elected in their individual capacities,
they constitute a separate class from 'those members
elected on the parties' tickets, so there is no
discrimination within the same class as to attract
above Article 25 of the Constitution.
53. Having held that Section 8 B of? the? Act does
not, in any way, violate Article 17 or Article 19 of the
Constitution, I may now deal with the second P limb
of Mr- Shariftiddin' Pirzada's argument, namely, that
the above impugned section 8-B of the Act is violative
of Article '63 of the Constitution. According to him,
the grounds of disqualifications from being elected or
chosen as, and from being a member of the
Parliament ale provided in clause (1) of the above
Article and, therefore, the Legislature could not have
provided further grounds through an enactment, but
the same could have been added through 0
Constitutional amendment. His further submission
was that as sub-clause (p) of clause (1) of Article 63'
relates to pre-election disqualification, section 8-B of
the Act could not have been enacted pursuant to the
above provision.

On the other hand, Mr, Khalid Anwer has urged that


the grounds mentioned in sub-clauses (a) to (p) of
clause (1) of Article 63 of the Constitution are not
exhaustive and as the above clause does not provide
that only the grounds mentioned therein will be the
only grounds for disqualification, the Parliament was
competent to add further grounds in view of item 41
of the Fourth Schedule to the Constitution. His
further submission was that sub-clause (p) of clause
(1~ of above Article 63 cannot be treated as an
independent sub-clause but is to be read with the
other sub-clauses and the opening portion of clause
(1) of the aforesaid Article.

54. Before dealing with the above contention, it may


be pertinent to reproduce above opening portion of
clause (1) of Article 63, sub-clause (p) and Item 41, of
the Fourth Schedule to the Constitution, which
contains Federal Legislative List, and which read as
follows:--

Opening portion of clause (1) of Article 63 and sub-


clause (p):

"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--

(a) ... .... ... ... ... .... ... ... ... ... . .. ... ... ... ... ... ... ... ... ...
... .... ... ... ... .... ... ...
(b) ... .... ... ... ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ..:
.. .... ... ... ... .... ... ...

?????????????????(c)

???????????????????????????????????????????
???????????????????????????????????????????????
???????????????????????????????????????????????
?????????????????

???????????????????????????????????????????
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???????????????????????????????????????????????
??????????????????????????????????????????

???????????????????????????????????????????
????????????????????????????
???????????????????????????????????????????
???????????????????????????????????????????????
?????????????????... ?????????????????....????

(d) ??????????... ?????????????...


?????????????.... ???????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????....
?????????????????... ?????????????...
?????????????... ?????????????...
?????????????_

(e) ????????????????????????????... .... ... ... ...


.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...

(f) ?????????????????????????????... .... ... ...


... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...

(h) ????????????????????????????... .... ... ... ...


.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...
(i) ??????????????????????????????... .... ... ...
... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...

(j) ??????????????????????????????... .... ... ...


... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ..: ... ...
.... ... ...

(k) ????????????????????????????... .... ... ... ...


.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...

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


.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...

(m) ???????????????????????????... .... ... ... ...


.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...

(n) ????????????????????????????... .... ... ... ...


.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...
.... ... ...
?????????????????(o)

???????????????????????????????????????????
???????????????????????????????????????????????
???????????????????????????????????????????????
?????????????????
???????????????????????????????????????????
???????????????????????????????????????????????
?????????????????
???????????????????????????????????????????
????????????????????????????

???????????????????????????????????????????
???????????????????????????????????????????????
???????????????????????????????????????????????
????????????????????????... ?????????????....
?????????????????... ?????????????...
?????????????... ?????????????....
???????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????????.... ???????????...
?????????????. . . ????????...
?????????????...

(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."

Item 41 of the Fourth Schedule to the Constitution:

"41. ???????Election to the office of President, to the


National Assembly, the Senate and the Provincial
Assemblies; Chief Election Commissioner and Election
Commission."

A perusal of the above-quoted opening portion of


clause (1) of Article 63 of the Constitution indicates
that the grounds mentioned in sub-clauses of? the
above clause are not exhaustive as it has not been
provided therein that the R same are the only
grounds. Additional grounds can be added either by R
amending the aforesaid clause (1) or by law.

55. Mr: Khalid Anwer, learned counsel for the


appellant, has referred to the case of Messrs Haider
Automobile Ltd. v. Pakistan P L D 1969 SC 623 in
furtherance of his above submission. The brief facts
were that under the Retired Judges (Legal Practice)
Order, 1962, a retired Judge was entitled to practice.
Mr. Manzoor Oadir was appointed as the Chief Justice
of the erstwhile High Court of West Pakistan. He
resigned and started practice. It seems that the
President issued Legal Practice (Disqualifications)
Ordinance (II of 1964). According to sections 2 and 3
of the said Ordinance, a Judge of a High Court who
had at any time after 14-8-1947 held office in
Pakistan as a Judge or Chief Justice of a High Court
was disqualified from pleading or acting in or before
any Authority or Tribunal except the Supreme Court.
The above Ordinance was- impugned inter alia on the
ground that the terms and conditions of service of a
Judge of Superior Court could only be prescribed by a
Constitutional instrument and not by any kind of sub-
Constitution Legislation like Ordinance. To reinforce
the above submission, reference was made to Articles
50, 51, 52, 90, 92, 93, 94, 99, 124, 125 and 126 of the
late Constitution of Pakistan, 1962, which contain the
provisions about the appointments of the Judges of
the Superior Courts and their terms of service.
However, the above , contention was repelled by
Hamoodur Rahman, J. as follows:--

"As a Judge it would have given me immense


satisfaction if I could have agreed with Mr. Brohi, the
learned counsel appearing for Mr. Manzoor Qadir,
that the intention of the 1962 Constitution was
clearly to the effect that the terms and conditions of
service of Judges of superior Courts could only be
provided in the body of the Constitution itself and not
by any Sub-Constitutional Legislation, but I regret my
inability to do so in view of the above provisions of
the Constitution as a whole arid giving to the
legislative powers conferred thereby upon the Central
Legislature by item 38 of the 1962 Constitution, their
due significance the conclusion is irresistible that the
Central Legislature did have the power to legislate
with regard to the terms and conditions? of service of
Judges of the Supreme Court notwithstanding Article
124 and the Second Schedule to the Constitution. If
this is so then a similarly power would, under the
residuary powers given by Article 132, be also
available to the Provincial Legislature so far as the
High Court Judges are concerned. Under the Scheme
of the 1962 Constitution the Provincial Legislature
could legislate with regard to all other matters not
enumerated in the Third Schedule. This would also
mean that under clause (2) of Article 131 of the 1962
Constitution the Central Legislature would, in the
national interest of Pakistan in relation to the
achievement of uniformity in respect of any matter
in?? different parts of Pakistan, have also the power
to make laws. with regard to the two High Courts
situated in the two Provinces of East and West
Pakistan. Indeed this is exactly what Ordinance No.II
of 1964 itself claims to have done by its preamble.
The President says that the Ordinance is being made
in the exercise of this very power for the achievement
of uniformity in both the wings of Pakistan. The
competency of the President to make this Ordinance
at a time when the Central Legislature was not in
session cannot, therefore, be challenged. The
President could under Article 29 of the Constitution
make Ordinance having the force of an Act of the
Central Legislature whenever the National Assembly
was not in session provided the law was within the
competence of the Central Legislature."

It was further observed that items in the Legislative


List are not to be read in any narrow or pedantic
sense and they should be construed in broader
meaning. The relevant observation on the above
aspect reads as under:--

"The items in the legislative list, as was observed in


the case of the United Provinces v. Mst. Atique
Begum and others A I R 1941 FC 16 are not to be read
in any narrow or pedantic sense. Each general word
therein should be held to extend to all ancillary or
subsidiary matters which can fairly and reasonably be
said to be comprehended within it. These items
describe only comprehensive categories of legislation
by a word of broad and general meaning. Thus, by
being given the authority to legislate in respect of the
Constitution, organisation, jurisdiction and powers of
the Supreme Court, the Central Legislature, in my
view, acquired the jurisdiction also to legislate with
regard to the number of Judges to be appointed, the
salaries to be paid to them and the terms and
conditions upon which they were to serve in the
Supreme Court."

56. Mr. Khalid Anwar has also referred to Corpus Juris


Secundum, Vol, 16 at pages 86 and 87, where the
maxim "expressio unius est exclusio alterius", has
been dealt with as under:--

"Applying the maxim, `expressio unius est exclusio


alterius', the enumeration of certain specified things
in a Constitutional provision will usually be construed
to exclude all things not thus enumerated. This is a
rule used merely in ascertaining the true meaning,
and it is not a rigid rule of universal application, and
will yield where an intention to the contrary is
indicated or expressed.

The rule should never be applied to obscure the


meaning or thwart the purpose of Constitutional
provision. The maxim should be applied with caution
to provisions of Constitutions relating to the
legislative branch of the Government, since it cannot
be made to restrict the? plenary power of the
legislature or to control an express provision of the
Constitution."

He has also referred to the American Jurisprudence,


Vol.62 at p.678, Process of Constitutional Decision
Making by Brest, The American Constitutional Law by
Tribe at pages 1308 and 1309 and Constitutional Law
of Canada by Peter W. Hogg, to show how the right to
privacy has been spelt out from the due process law
theory by the Courts in the absence of any, express
provision in the Constitution and U.S. Supreme Court
has given very wider construction to the various
provisions of the Constitution in order to meet the
changing circumstances with the passage -of times.
He has also pointed out that in the above treatise on
Constitutional Law of Canada, the Author has
highlighted the doctrine of progressive interpretation
of Constitutional documents. He has also referred to
the judgment of the Privy Council in the case of
Herrietta Muir Edwards and others v. Attorney-
General for Canada and others 1930 PC 124, where
the Privy Council made the following observations
about The British North America Act, which granted
the Constitution to Canada:--

"The British North America Act planted in Canada a


living tree capable of growth and expansion within its
natural limits. The object of the Act was to grant a
Constitution to Canada. `Like all written Constitutions
it has been subject to development through usage
and convention'; Canadian Constitutional Studies, Sir
Robert Borden (1922), p.55.

Their Lordships do not conceive it to be the duty of


this Board --it is certainly not their desire-- to cut
down the provisions of the Act by a narrow and
technical construction, but rather to give it a large
and liberal interpretation so that the Dominion to a
great extent, but within certain fixed limits, may be
mistress in her own house, as the Provinces to a great
extent, but within certain fixed limits, are mistresses
in theirs."

57. The same approach was adopted by this Court in


the aforesaid three cases referred to hereinabove in
para.49 while construing Article 17(2) of the
Constitution. It will suffice to reproduce para. 17 from
my opinion in the case of Mian Nawaz Sharif (supra),
which reads as under:--

"17. ???????I may also observe that there is a marked


distinction between interpreting a Constitutional
provision containing a Fundamental Right and a .
provision of an ordinary statute. A Constitutional
provision containing Fundamental Right is a
permanent provision intended to cater for all time to
come and, therefore, while interpreting such a
provision the approach of the Court. should be
dynamic, progressive and liberal keeping in view
ideals of the people, socio-economic and politico-
cultural values (which in Pakistan are enshrined in the
Objectives Resolution) so as to extend the benefit of
the same to the maximum possible. This is also called
judicial activism or judicial creativity. In other words,
the role of the Courts is to expand the scope of such a
provision and not to extenuate the same. The
construction placed by me on Article 17 of the
Constitution hereinabove in para. 16, seems to be in
consonance with the above rules of construction
58. I may observe that the judgment of this Court in
the case of Messrs Haider Automobile Ltd. (supra) on
all fours is applicable to the present case. In the
above case somewhat identical arguments were
advanced, namely, that since late Constitution of
1962 contained exhaustive provisions about the
appointment and other terms and conditions of
service of the Judges of the superior Courts, the
President was not competent to prescribe
disqualification to practice after retirement through
an Ordinance (i.e. Ordinance of 1964), but the same
was repelled. It was held that since under item 38 of
the 1962 Constitution the Central Legislature was
competent to legislate on the subject, the President
could issue above Ordinance as the Legislature was
not in session. It was highlighted that Legislative List
should not be construed in any narrow or pedantic
sense. Each general word used therein should be
interpreted in a manner, which may cover all ancillary
or subsidiary matters, which can fairly and reasonably
be said to be comprehended within it.

It may further be observed that a Constitution of a


Country is a living tree capable of growth and
expansion within its natural limits as observed by the
Privy Council in the case of Herrietta Muir Edwards
and others (supra). I So, while construing a
Constitutional provision, the approach of the Court
should be dynamic, progressive, and liberal keeping in
view the changed situation, which is intended to be
catered for by an existing provision of the
Constitution or by new legislation within the compass
of the Constitution. S While examining the vires of
such legislation, Justice Holmes' observation, I c','
that, "Legislation may begin, where an evil begins" be
kept in view. The above' approach of interpretation of
a Constitutional provision cannot be negated by
pressing into service the Latin maxim, "expressio
unuis est exclusio alterius" as pointed -out in Corpus
Juris Secundum (supra) that the above maxim cannot
be used to restrict the plenary power of the
Lagislature or to control an express provision of the
Constitution.

59. I am inclined to hold that clause (1) of Article 63


of the Constitution does not, in any way, place
embargo on the powers of the Parliament to provide
a law to eliminate the evil of defection. If we were to
accept the contention of Mr. Syed Sharifuddin
Pirzada, learned counsel for the respondents, we will
have to read therein additional words after the word
"if', "and only if. At this juncture it may be pertinent
to point out that under clause (1) of Article 51 of the
Constitution, the members of the National,

?????????????????Assembly and under clause


(1) of Article 106, the members of the Provincial'
Assemblies Ore to be elected by direct and free votes
in accordance with law. In other words, the above
provisions in the Constitution envisage enactment of
election laws by the Parliament. Similarly, sub-clause
(p) of clause (1) of Article 63 contemplates enactment
of laws for providing disqualification in addition to
the grounds mentioned in sub-clauses (a) to (o) in
above clause (1) of Article 63. The above provisions
are to be read in conjunction with item 41 of the
Fourth Schedule to the Constitution. I am unable to
subscribe to the submission of Mr. Syed Sharifuddin
Pirzada that the above sub-clause (p) relates to pre-
election period and is independent from other sub-
clauses of clause (1) of the above Article. The opening
part of clause (1) of Article 63 reproduced
hereinabove will not only cover sub-clauses (a) to (o)
but will also encompass and govern above sub- clasue
(p). There seems to be no conflict T between above
sub-clause (p) and the other sub-clauses of the above
clause (1) of Article 63 of the Constitution. The
reference by Mr. Syed Sharifuddin pirzada to the
treatise on the Constitutional Limitations by Thomas
M. Cooly. Eighth Edition at p.129 and Treatise on
Constitutional Law, Substance and Procedure, Second
Edition by Ronald D. Rotunda and John E. Nowak at
p.660, in which the Authors have observed that upon
the adoption of an amendment to the Constitution,
the amendment becomes a part thereof as much so
as it had been originally incorporated in the
Constitution and that in case of conflict, efforts
should be made to construe in a manner which may
harmonize the amendment with the other provisions
of the Constitution but if it cannot be done, the
amendment being the last expression, shall prevail, is
not apt to the case in hand as there is no conflict
between sub-clause (p) and other sub-clauses of
clause (1) of Article 63 of the Constitution as held by
me above.,
60. I may now revert to the last limb of Mr. Syed
Sharifuddin Pirzada's arguments that above section 8-
B of the Act is violative of Article 66 of the
Constitution, which contains the privileges of
members and clause (1) thereof provides that
"subject to the Constitution and to the rules of
procedure of Majlis-e-Shoora (Parliament), there shall
be freedom of speech in Majlis-e?Shoora (Parliament)
and no member shall be liable to any proceedings in
any Court in respect of anything said or any vote
given by him in Majlis-e-Shoora (Parliament), and no
person shall be so liable in respect of the publication
by or under the authority of Majlis-e-Shoora
(Parliament) of any report, paper, votes or
proceedings". According to Mr. Sharifuddin Pirzada,
section 8-B of the Act in fact violates the above right
of freedom of speech and vote contained in above
clause (1).of Article 66 of the Constitution. He has
invited our attention to the case of Pakistan v. Ahmed
Saeed Kirmani and others PLD 1958 SC (Pak.) 397, the
case of Lt.-Col. Farzand Ali and others v. Province of
West Pakistan through the Secretary, Department of
Agriculture, Government of West Pakistan, Lahore
PLD 1970 SC 98, the case of Islamic Republic of
Pakistan v. Mian Mahmood Ali Kasuri and another
1976 SCMR 273 and the case of Karachi Bar
Association v. Abdul Hafeez Pirzada and another P L D
1988 Kar. 309 besides referring to the two cases of
Indian Supreme Court,namely, the case of M.S.M.
Sharma v. Sri Krishna Sinha and others A I R 1959 SC
395 and in Special Reference No.l of 1964 AIR 1965 SC
745.

In the first case, through a Constitution petition, the


proceedings of the erstwhile West Pakistan
Legislative Assembly relating to the election of the
Speaker as to the voting was impugned. Though the
High Court dismissed the above petition, but the
learned Judges, who were members of the Bench,
made certain observations which were commented
upon by this Court and it was held that in such
proceedings, the Court had no jurisdiction to interfere
with in view of the various Constitutional provisions
contained in the late Constitution of Pakistan, 1956.
In the second case, the appellant, who was retired
from service, filed a writ petition, which was
?allowed. Thereupon, the Legislature made
certain amendments in the relevant law. The
appellant filed another writ petition challenging the
above amendments on the ground that the relevant
amendment was passed with the votes of some
members who were not qualified. The above writ
petition was dismissed by High Court, which
judgment was maintained by this Court. In the third
case, contempt of Court notice was issued to Mr.
Mian Mahmood Ali Kasuri, Advocate, inter alia under
Article 204 of the Constitution, but the same was
discharged after Mr. Kasuri tendered apology. In the
fourth case, the question before a Full Bench of High
Court of Sindh was, whether all the speeches of the
members of the National Assembly including the
speeches which may scandalize the Judges or the
Courts are immune from being questioned in a Court
of law. The above question was answered by me on?
behalf of the Bench as under:-?

"13 .We are inclined to hold that we cannot attribute


any redundancy to any provision of the? constitution
or any part thereof. The provisions of the Constitution
are to be construed as to give? effect to each and
every word thereof. If we were to accept the
contentions of Mr. Kamal Azfar the words `subject to
Constitution' appearing in para. 1 of Article
???????????66 will be rendered?
redundant/surplusage which will be against the
above well-settled principle of interpretation of a
Constitutional provision and also against the intention
of the Framers Of the Constitution as the above
words were not used in the corresponding provisions
of the later Constitution of 1962,? namely, Article ill,
but have been deliberately used in the above Article
66. A Reasonable construction of above-quoted
Article 66 in conjunction with Articles 68 and 204 will
be that the freedom of speech of a member of the
Majlis-e-Shoora envisaged by para. 1 of above Article
66 is subject to the Constitution and, therefore, if any
of its ???????????provision is violated by a
speech and for such a violation remedial action can
be taken under the Constitution, the same can be
availed of. It must, therefore, follow that if a member
violates the provision of the Constitution, he is
amenable to Article 204 of the Constitution.
However, we may observe that the Court will be
reluctant to exercise the power of contempt of Court
in respect of a speech made by a member within the
four walls of Majlis-e-Shoora chamber unless there
are compelling reasons. There cannot be two
opinions that for the proper functioning of a
Parliament, its members should have freedom of
speech uninterfered with by an outside institution but
at the same time it cannot be denied that the Judges
of the superior Courts cannot discharge their
Constitutional onerous duties unless they are free
from all sorts of outside pressures and, therefore; the
Constitution-makers thought it fit and proper to
incorporate above Articles 68 and 204 for prohibiting
any discussion in the Majlis-e?Shoora with respect to
the conduct of any Judge of the Supreme Court or of
a High Court in the discharge of his duties and
empowering the Court to take action for contempt.
We may observe that a written Constitution like one
which we have, contemplates trichotomy of powers
between the three organs of the State, namely, the
executive, the legislature and the judiciary. They have
to act within the bounds specified in the Constitution,
any transgression or encroachment by one organ over
the sphere of the other will result into chaos and
uncertainty. It is, therefore, of paramount importance
that an equilibrium is to be maintained inter se
between the above three organs within the limits
prescribed by the Constitution."

In the above first Indian Supreme Court case inter alia


it has been held that Article 194 which relates to the
privileges of the members of the ?Parliament is not
subject to Article 19 of the Indian Constitution, which
pertains to the freedom of speech subject to
reasonable restrictions.

In the second Indian case, Allahabad High Court


allowed the habeas corpus petition, filed by a convict
convicted by the Provincial -Assembly for the
contempt of the Assembly. The Assembly issued
contempt notice to the Judges of the Bench, which
allowed the above petition and also to the convict
and the Advocate. The matter was brought before the
Indian Supreme Court and it was held that no
contempt was committed by the Judges and the
other persons.

61. The above cases inter alia indicate that generally


the Courts in exercise of their general jurisdiction will
be reluctant to interfere with the working of the
Assemblies. However, the above reports do not touch
upon the controversy in issue, namely, whether a law
which is intended. to eliminate evil of horse-trading
(defection) and to maintain the required discipline
among the parties' members in the Assemblies, which
is sine qua non for functioning of the Parliamentary
democracy and to ensure stability of the democratic,

institutions, can be said to be violative of Article 66(1)


of the Constitution. I have already dealt with the
question of defection and as to the import of section
8-B of the Act hereinabove inter alia in paras.49 to 52.

It may again be pointed out that in the case of Shri


Kihota Hollohan v. Zachilhu and others (supra), the
Indian Supreme Court held that though paragraph 2
of the Tenth Schedule makes voting or abstaining
from voting by a member of the Assembly contrary to
any direction issued by the political party concerned a
ground of defection, the same is not violative of the
basic structure of the Indian Constitution which
includes Article 194 relating to the privileges of the
members of the Assemblies. It may again be
mentioned that the Supreme Court of United States
in the case of Ben F. Ray v. Edmund Blair (supra) has
held that obtaining an undertaking from a candidate
for the !, electoral college for the President and Vice-
President's elections to vote to the candidate of the
party is not violative of any of the Constitutional
Rights. The j rationale seems to be that.-if an election
is to be fought on political party basis, U the political
party has the right to ensure that a member of the
electoral college U who has been elected to its
support, votes for the candidates for President and
Vice-President's elections. If a Constitution adopts
Parliamentary form of j Government, the same
cannot be run without having political parties as
highlighted by this Court inter alia in the case of Miss
Benazir Bhutto (supra) and a political party cannot
run the Government unless its members in the
Assemblies are subject to some discipline. The
defection law is intended and designed to maintain
the required discipline. In other words, it is in
furtherance of the object of, the Constitution.
Generally the defection takes place not for the reason
that a member has different. views on an issue of
national importance but on account of worldly gains
in the form of an office or ministership or some other
considerations as pointed out hereinabove. I am,
therefore, of the view that section 8-B of the Act does
not, in any way, infringe , clause (1) of Article 66 of
the Constitution.

62. 1 may now refer to the submissions of Mr. Iftikhar


Gillani noticed hereinabove in para. 16. His
submission that since floor crossing is an evil which is
condemned by all the political parties and sections of
people and as section 8-B of the Act was enacted to
eliminate the above evil according to the will of the
people, this Court would not declare it ultra vires on
any technical ground but would press into service the
doctrine of deferment. Reliance was placed by him on
the two judgments of the Supreme Court of United
States, namely, in the case of Nicholas De B.
Katzenbach v. John P. Morgan and Christine Morgan
384 US 641 and in the case of Mac Q. Williamson v.
Lee Optical of Oklahoma 483 USC 348.

63. On the other hand, Mr. Syed Sharifuddin Pirzada


has invited our attention to the treatise
"Constitutional Interpretation", Fourth Edition by
Craig R. Ducat and Harold W. Chase, and the book
under the caption

"The Supreme Court, How it was, how it is" by


William H. Rehnquist (former Chief Justice of the
United States).

64. In the above books, the learned Author and the


learned former Chief Justice of the United States have
adversely commented upon the above doctrine of
deferment at pages 66 and 314 respectively. In my
view, it is not necessary in the present case to go into
the above question. I am also of the view that the
second submission of Mr. Iftikhar Gilani that Article
63 is a provision of the Constitution of a specie, which
cannot be termed as organic, is also not required to
be dealt with for the purpose of the present
controversy.

65. It may be mentioned that in reply to a query


raised by some members of the Bench, Messrs Khalid
Anwer and Syed Sharifuddin Pirzada have addressed
very exhaustive and learned arguments as to the
effect of expiry of Ordinance NO XXX of 1993 (which
had amended subsections (2) and (3) of above section
8-B of the Act) on or about 6-2-1994 on section 8-B.
Both have submitted that upon the expiry of the
above Ordinance, section 8-B of the Act as it existed
prior to the issuance of the above amending
Ordinance, stood revived, as a temporary law cannot
permanently amend or nullify a provision of a
permanent statute. Reliance was placed by them
inter alia on the judgments rendered by this Court in
the case of Government of Punjab through Secretary,
Home Department v. Zia Ullah Khan and 2 others
1992 SCMR 602, in the case of Muhammad Arif and
another v. The State and another 1993 SCMR 1589, in
the case of Pir Sabir Shah v. Federation of Pakistan
and others PLD 1994 SC 738 and in the case of The
Sargodha-Bhera Bus Service Limited and others v. The
Province of,West Pakistan and another P.LD 1959 SC
(Pak.) 127. In addition io the above judgments, Mr.
Syed Sharifuddin Pirzada, bas also referred to some
Indian Supreme Court judgments and also to some
treatises, namely, "Principles of Statutory
Interpretation" by Guru Prasanna Singh, "The
Interpretation of Statutes" by Vepa P. Sarathi,
"General Clauses Acts" Central and States by Dr.
Vidya Dhar Mahajan and Bindra on Interpretation of
Statutes.

66. It is not necessary to examine the above aspect in


detail as the above issue stands settled by this Court
inter alia in the above judgments.

67. Since I was of the view that the Election


Commission had competently decided the two
references and section 8-B of the Act was intra vires, I
wanted to hear the above appeals on merits, but in
view of majority judgment, no further proceedings
could take place.

These are my reasons pursuant to a short order,


dated 16-1-1994 of the minority view.

(Sd.)
AJMAL MIAN, J,

I agree. My note of concurrence is also appended.

(Sd.)
SALEEM AKHTAR, J.
I agree with my brother HJ(2).

(Sd.)
FAZAL ILAHI; J.

SALEEM AKHTAR, .J.--1 have had the, advantage of


reading the exhaustive and accomplished opinion of
my learned brother Ajmal Mian, J. iii -which all the
facts, contentions and references made during the
hearing have been discussed in a comprehensive
manner. I agree with it and append herewith my
opinion on some of the questions involved in these
appeals.

2. As the facts of these appeals have been narrated in


the preceding judgment f would retrain tram
repeating them and would only refer to some of
them. Both these direct appeals arise hone the
majority judgment of the Election Commission
whereby appellant's petitions under section 8-B' of
the Political Parties Act against Shad Muhammad
Khan and Akhtar Hussain Shah were dismissed. These
respondents were elected as members of the
Provincial Assembly of N.-W.F.P. on Muslim League
(N) ticket. Sabir Shah the appellant claimed that these
respondents have defected/withdrawn their support
and joined hands with the Opposition which
ultimately led to the outset of the appellant and
induction of Sherpao as the Chief Minister. The
respondents denied to have defected or withdrawn
their support. The Commission by majority held that
the defection was not proved. However the Chief
Election Commissioner who headed the Commission
held that from the evidence defection had been
established and both the respondents were
disqualified from being the members of the
Assembly.

3. Mr. S.S.? Pirzada, the learned counsel for the


respondents, has raised preliminary issue challenging
the maintainability of these appeals, The learned
counsel has contended that the Election Commission
had the jurisdiction to consider the vires of section 8-
B of the Political Parties Act (hereinafter referred to
as the Act) on the touchstone of the Fundamental
Rights. He further contended that the Supreme Court
being the apex Court, irrespective of the fact that it is
hearing appeal under the Political Parties Act, has the
power' to declare section 8-B ultra wires of the
Constitution. It was also contended that section 8-
B(2) of the Act is in conflict with Articles 63 and 66 of
the Constitution and, therefore, the Election
Commission had no jurisdiction to entertain, hear and
decide the reference filed against the respondents.
According to the respondents the reference should
have been heard by the Chief Election Commissioner
and not the Election Commission.

?????????????????4. The question to be


considered now would be whether the Supreme
Court can, while hearing appeal from an order passed
by the Election Commission in exercise of power
under section 8-B of the Act could declare the said
section ultra vires the Constitution. The general
principle in this regard is that while a Tribunal
exercises a power under a particular statute it has
limited jurisdiction. It cannot travel beyond the
statute itself and has no jurisdiction and cannot
consider the vires of the provisions of the Act, for the
main reason that in exercise of its jurisdiction, the
Tribunal derives validity of its action, and power
under the Act itself. However, the learned counsel for
the respondents has canvassed completely different
view contending that firstly the Election Commission
has the jurisdiction to consider the vires of the Act
and secondly the Supreme Court having the plenary
power has the jurisdiction to consider the vires of the
Act irrespective of the fact that it is hearing appeal
under that statute. In support of the first part of the
argument, the learned counsel has referred to
Muhaad Hashim Khan v. Province of Balochistan (PLD
1976 Quetta 59) in which the Division Bench while
considering the validity of a Notification under which
the petitioners were denied their seniority in a
service matter, it was held that the Service Tribunal
while hearing the appeal, is deemed to be a civil
Court under section 5 of the Service Tribunals Act and
thus will have the jurisdiction to examine whether or
not a law is void by reason of its conflict with the
Fundamental Rights or is otherwise ultra vires or that
the order made is mala fide. This judgment was
followed in Muhammad Asif v. Secretary to
Government of the Punjab, C&W Department, Lahore
and others (199(1 PLC C.S.) 257). In this case also the
order of transfer was challenged by the petitioner.
These judgments were approved in Iqan Ahmed
Khurrant v. Government of Pakistan (PLD 1980
Supreme' Court 153). In this case also the Notification
which was alleged to affect the terms and conditions
of the service was challenged and this !Court, while
considering the question of non-maintainability of the
Constitution petition filed in the High Court, observed
that the effect of the Rules is that Nit has altered the
terms and conditions of service. This being so, the bar
of Article 212 of the Constitution would be applicable
with full force as in that exercise the question of vires
of the Rules vis-a-vis section 2 of the Act would
necessarily be considered. In this background the
aforestated judgments were approved. The
distinguishing features of these cases are that they
relate to service matters in which rules and
notifications were challenged: The Act under which
the Service Tribunal was competent to proceed had
not been challenged nor it was under consideration
that the Service Tribunal has the jurisdiction to
declare void the enactment under which it was
created and is exercising its power. The ratio of all
these case's seems to be that where any rule or
notification adversely affects the terms and
conditions of service the aggrieved party is
competent to file an appeal before the Service
Tribunal which has the power to consider whether
such rule and notification are violative of
fundamental rights or suffer from mala fides. These
judgments do not lay down the rule that the Service
Tribunal can consider the vires of enactment under
which it is empowered to hear appeal and declare it
ultra vires. In this regard reference was made to IA.
Sherwanu and others v. Government of Pakistan and
others (1991 SCMR 1041). In this case our learned
brother AjmaI Mian, J. on an exhaustive review of the
leading judgments on the point, observed as follows:-

"From the above-cited cases, it is evident that it has


been consistently held inter alia by this Court that a
civil servant if is aggrieved by a final order, whether
original or appellate,? passed by a departmental
authority in respect of his terms and conditions, his
remedy, if any, is by way of an appeal 'me-fore the
Service Tribunal even where the case involves vires of
a particular Service Rule or a notification or the
question, whether an accused civil servant can claim
the right to be represented by a counsel before the
Enquiry Officer. We are inclined to hold that if a
statutory rule or a notification adversely affects the
terms and conditions of a civil servant, the same can
be treated as an order in terms of subsection (1) of
section 4 of the Act in order to file an appeal before
the Service Tribunal. However, in the present case,
the petitioners' case is founded solely on the ground
of discriminatory treatment in violation of Article 25
of the Constitution and not because of any breach of
any provision of the Civil Servants Act or any service
rule. Furthermore, the question involved is of public
importance as it affects all the present and future
pensioners and, .therefore, falls within the compass
of clause (3) of Article 184 of the Constitution.
However, we may clarify that a civil servant cannot
by?pass the jurisdiction of the Service Tribunal by
adding a ground of violation of the Fundamental
Rights. The Service Tribunal will have jurisdiction in a
case which is founded on the terms and conditions of
the service even if it involves the question of violation
of the Fundamental Rights."

5. It is thus obvious that even this judgment does not


support the contention of the respondents with
regard to the jurisdiction of the Tribunal to consider
the vires of the Act under which it is empowered to
exercise jurisdiction.

6. Mr. Khalid Anwar, learned counsel for the


appellant has taken the stand that a Tribunal of
limited jurisdiction empowered under an Act to hear
any case has no jurisdiction to consider the vires of
such Act. Reference has been made to Mr. Fazlul
Quader Chowdhry and others v. Mr. Muhammad
Abdul Haque (PLD 1963 SC 486). In this case
amendments were made in the Constitution by Order
HIV of 1962 particularly in Articles 103 and 1114 of
the Constitution of 1'962. Article 1113 prescribed
qualifications and disqualification for election as, a
member of the National Assembly. Article 104
provided that any member of an Assembly shall cease
to be a member of the Assembly on the day on which
he entered upon office as Minister. By President's
Order No.XXXIV of 1962 this disqualification incurred
by the Ministers was removed and amendments in
the relevant provisions of the Constitution were
made. The constitutionality of these amendments
were challenged by the respondent, a member of the
Assembly, before the High Court of East Pakistan
praying' for a writ in the nature of quo warranto
under Article 98(Z)(b) of the Constitution of 1962. The
question arose whether the validity of such
amendment in the Constitution could be decided by
the Chief Election Commissioner or the High Court.
Cornelius, CJ. observed :--

???????????? ?To decide upon the question of?


constitutional validity, in relation to
?????????????????an act of a statutory
authority, how high so ever, is a duty devolving
ordinarily upon the superior Courts by virtue of their
office, and in the absence of any bar either express or
implied which stands in the way of that duty being
performed in respect of the Order here is question it
is a responsibility which cannot be avoided.

In the matter before us, there is no fact to be


ascertained, but there is a legal question of the
highest importance to be decided, namely, whether
the action of the President in excluding Ministers
from the category of holders of offices of profit in the
service of Pakistan- was an action which he was
empowered to perform in terms of Article 224(3).
This raises a question of conflict between the
Constitutional provision and a. sub-Constitutional
instrument which might conceivably have a higher
status than law of a Legislature (if only because of the
absence from Article 224 of any provision to enable
such a law to be amended; or repealed by the
National Assembly). Such a question has no quality
similar to' the questions of fact which fall within the
purview of the Chief election? Commissioner . He is a
statutory authority and must observe and obey the
law as he finds it. It will ..of be for him in the
discharge of his functions to question the vires of any
law.., ... ... ... .. ... .?????? ?????????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????...
?????????????... ?????????????????...
?????????????... ?????????????...
?????????????... ?????????????.......
???????... ?????????????...
?????????????... ?????????????...
?????????????"It is to my mind inconceivable
that the intention of the Constitution could ever be
that questions of this nature should go be for. the
Chief Election Commissioner, and. on the other hand,
every reason of a general or a special nature
combines to produce the conviction that this is
strictly a question lying within the jurisdiction of the
superior Courts, at the highest level of that
jurisdiction. The argument that. for the sake of form
the matter should have been allowed to go before
the Chief Election Commissioner and ,only after that
could it have been brought before the Courts is, in
the circumstances, not one that can be taken
seriously."

7. In this regard reference was also made by the


respondents to:--

(1) ??????????The Manager,. Khewra Salt Mines,


Khewra v. The Mines Employees
?????????????????and Labour Union, Khewra
and another (PLD 1976 Lahore 601),
(2) ????????????????????????????Akhtar Ali
Pervez v. Altafur Rehman (PLD 1963 (W.P) Lahore
390),

(3) ??????????Messrs Shafiq Hanif (Pert.) Ltd.,


Karachi v. Bank of Credit and Commerce International
(Overseas) Limited, Karachi (PLD 1993 Karachi 107),
and

(4) ??????????J.K. Manufactures Ltd. v. The Sales


Tax Officer, Sector II, Kanpur ?????????????????and
others (AIR 197?1 Allahabad 362 j,

8. Mr. S.S. Pirzada learned counsel for the


respondents referred to Humayun Saifullah Khan v.
Federation of Pakistan (PLD 1994 SC 595), where in a
reference filed under section 8-B of the Act before
the Election Commission, the said provision was
challenged as ultra vires the Constitution. An issue
was framed by the Election 'Commission. The
respondent filed writ petition in the High Court of
Peshawar challenging validity of the reference
Without deciding vires of the Act, the High Court
allowed the petition. In appeal, this Court set aside
the judgment of the High Court with direction to
decide the writ petition according to law. 'The
Election Commission was also allowed to proceed
without restraint.. However, Ajmal Mian, J. agreeing
with the dismissal of the petition observed that this
Court instead of remanding to the High Court, should
decide the question of vires itself. The point which
has been emphasised by the learned counsel is that
Election Commission was allowed to proceed without
any restraint. Merely because the Election
Commission had been allowed to proceed without
restraint did not imply that it had the jurisdiction to
declare section 8-B ultra vires the Constitution. I am,
therefore, of the view that Election Commission is not
competent to decide question of vires of section 8-B
of the Act.

9. The learned counsel for the respondents then


contended that while hearing appeal this Court. is not
restricted within the bounds of 'the law from which
the appeal has arisen but being the apex Court is
competent to decide vires of the Act. It was further
contended that in any event Article 187 of the
Constitution confers power to decide all questions to
do complete justice between the parties. The learned
counsel referred to Waris? Mian's case (PLD 1957 SC
(Pak.) 157) in which question of vires of the Foreign
Exchange Act was raised for the first time and
entertained by it. Reference was also made to Noora
and another v. The State (PLD 1973 SC 469) and Ch.
Zahur Ilahi v. The State (PLD 1977 SC 275) in support
of the argument. Reliance was also placed on
Muhammad Ashraf and another v. The . State (PLD
1981 SC 265), Muhammad Aslam and another v.
Munshi Muhammad Behram and another (1991
SCMR 1971), Mst. Safyya and another v. Muhammad
Rafique and others (PLD 1993 SC 62) and Muhammad
Tufail and another v. Mirza Azizullah and others (1994
SCMR 347). The rules laid down in these judgments
are that this Court has plenary power to do complete
justice and if necessary even Article 184 can be
invoked to grant relief provided the conditions laid
down in it (Article 184) are satisfied. Mr. Khalid Anwar
has pointed out that after Chaudhry Zahoor Ilahi's
case (PLD 1977 SC 273) Article 187 was amended and
it was made subject to Article 175(2) which provides
that no Court shall have any jurisdiction save as is and
may be conferred on it by the Constitution or by or
under any law.

10. The Supreme Court is the apex Court. It is the


highest and the ultimate Court under the
Constitution. In my view the inherent and plenary
power of this Court which is vested in it by virtue of
being the ultimate Court, it has the power to do
complete justice without in any manner infringing or
violating any provision of law. While doing complete
justice this Court would not cross the frontiers of the
Constitution and law. The term "complete justice" is
not capable of definition with exactitude. It is a term
covering variety of cases and reliefs which this Court
can mould and grant depending upon the facts and
circumstances of the case. While doing complete
justice formalities and technicalities should not fetter
its power. It can grant ancillary relief, mould the relief
within its jurisdiction depending on the facts and
circumstances of the case, take additional evidence
and in appropriate cases even subsequent events
may be taken into consideration. Ronald Rotunda in
his book "Treatise on Constitutional Case Substance"
(Second-Edition), Volume 2 at page 90 has stated that
"The Supreme Court is an essence of a continual
Constitutional convention". The jurisdiction and the
power conferred on the Supreme Court does
empower it to do complete justice by looking to the
facts, circumstances and the law governing a
particular case.. Article 187 does not confer any
jurisdiction. It recognises inherent power of an apex
Court to do complete justice and issue orders 'and
directions to achieve that end. Inherent justification is
vested in the High Court and subordinate Courts
while dealing with civil - and criminal cases by virtue
of provisions of law. The inherent jurisdiction of this
Court to do complete justice cannot be curtailed by
law as it may adversely affect the independence of
judiciary and the fundamental right of person to have
free access to the Court for achieving complete
justice. This enunciation may evoke a controversy
that as Article 175(2) restricts Article 187 it will create
conflict between the two. There is no conflict and
both the Articles can be read together. The conflict in
the provisions of the Constitution should not be
assumed and if apparently there seems to be any, it
has to be interpreted in a harmonious manner by
which both the provisions may co-exist. One provision
of the Constitution cannot be struck down being in
conflict with the other provision of the Constitution.
They have to live together, exist together anti operate
together. Therefore, while interpreting jurisdiction
and power of the superior Courts one should look to
the fundamental rights conferred and the duty cast
upon them under the Constitution. A provision like
Article 187 cannot be read in isolation but has to be
interpreted and read harmoniously with other
provisions of the Constitution. In my humble view this
Court while hearing appeal under a statute has the
jurisdiction and power to decide the question of vires
of the statute under which the appeal has arisen X
and can even invoke Article 184(3) in appropriate
cases.

11. Mr. S.S. Pirzada the learned counsel for the


respondents contended that section 8-B of the Act is
ultra vires Article 63. Before considering this
contention it would be proper to first state the
purpose of section 8-B. It aims at weeding out
disloyalty, treachery and corruption from the rank
and file of the elected member to both the Houses. It
intends to keep the body politics pure and clean, the
trust reposed by the voters intact and discourage,
nay, eliminate adventurism for personal gain, benefit
and reward. Defection, horse ?trading or floor-
crossing by the members elected on a party ticket is
the Y "odious type of corruption". Section 8-B or
similar legislation wish to achieve Y pious end by
removing evil, cleaning political culture and creating
discipline in the elected representatives of the
people. Discipline is the cornerstone without which
no society 'can .exist, flourish and develop. In all the
countries having Parliamentary form of Government,
the evil of defection, shifting of loyalties, floor-
crossing, varying in degrees and withdrawal of
support has been noticed and steps have been taken
by legislation or through conventions to check them.
The jurists, Judges and authors have disapproved it in
strong terms.

12. The learned Advocates for the parties do not for a


moment justify defection. However, their approach in
devising mechanism for its elimination is different.
Mr. S.S. Pirzada has referred to, "Our Constitution
Defaced and Defiled" by NA. Palkhivala, "Parliament"
by Sir Ivon Janning, "Constitutional Reforms
Reshaping the British Political System" by Rodney
Brozier, "Constitutional Law of India" by Servai (3rd
Edn.) pare. 19 of the Report of the Constitution
Commission Pakistan, 1961, Amalgamated Society of
Railway Servants v. Osborne (1910 AC 87) and Shri
Kihota Hollohon v. Zachilhu and others (AIR 1993 SC
412). Mr. Khalid Anwar also referred to Servai and
Ben F. Roy v. Edward Blair (343 US 214). None has
praised defection, all have despised it and have not
termed it a virtue. It is the evil of evils. Shafiur
Rahman, J. while condemning it in strong terms in
Khawaja Ahmed Rahim Tariq v. The Federation of
Pakistan (PLD 1992 SC 646) and enumerating the evils
of defection of elected member opined that it is.
breach of "confidence reposed on him by the
electorate." The "political sovereign is rendered
helpless by such betrayal of its own representative"
and "the electorate has to wait till the next election".
It was further observed that

"It destroys the normative moorings of the


Constitution of an Islamic State. The normative
moorings of the Constitution prescribe that
`sovereignty over the entire-universe belongs to
Almighty Allah alone, and the authority to be
exercised by the people of Pakistan within the limits
prescribed by Him is a sacred trust and the State is
enjoined to exercise powers and authority through
the chosen representatives of the people'. An elected
representative who defects his professed cause, his
electorate, his party, his mandate, destroys his own
representative character. He cannot on the mandated
Constitutional prescription participate in the exercise
of State power and authority. Even by purely secular
standards carrying on of the Government in the fact
of such defections, and on the basis of such
defections, is considered to be nothing but `mockery
of the democratic Constitutional process'."

13. In a parliamentary form of Government political


parties play an important role in the governance of
the country which process includes election,
formation of Government. or to sit in opposition. As
observed in Kihoto Hollohan "...a political party
functions on shared belief". It has to make preserve
and protect its public image and popularity to win the
confidence and trust of the electorate. Defection of
elected members who defy party's policy, manifesto
and shift their loyalty for self-gain, shake the
confidence of the people and create cracks in the
body politics. The importance of political parties
under our Constitution their role and effect on
political process has been authoritatively stated in
Syed Abul Aala Maudoodi v. Government of West
Pakistan and others (PLD 1964 SC 673), Miss Benazir
Bhutto v. Pakistan (PLD 1988 SC 416), Mrs. Benazir
Bhutto v. Federation of Pakistan and others (PLD
1989 SC 66) and Nawaz Sharif v. Pakistan (PLD 1993
SC 473).

14. In this background I will now examine principles


of interpretation of the Constitution. It is now
universally accepted that it should not be interpreted
in a narrow, pedantic, technical and restricted
manner. Constitution is a permanent, organic and
living document. It assimilates the past, present and
future for proper governance generation after
generation. Approach to such a document should be
liberal, progressive and wide without doing any
violence to the intention and language. The
fundamental principles embodied in the Constitution
and the fundamental rights have to be kept in view.
In Benazir Bhutto v. Pakistan (PLD 1988 SC 416)
Haleem, CJ. in a classic and comprehensive manner
observed:

"The Court will be in a position, if the procedure is


flexible, to extend the benefits of socio-economic
change through this medium of interpretation to all
sections of the citizens.

This approach is in tune with the era of progress and


is meant to establish that the Constitution is not
merely an imprisonment of the past; but is also alive
to the unfolding of the future. It would thus be futile
to insist on ceremonious interpretative approach to
Constitutional interpretation as hitherto undertaken
which only served to limit the controversies between
the State and the individual without extending the
benefits of the liberties and the Principles of policy of
all the segments of the population."

15. This golden principle laid down by Haleem, CJ.


was, accepted and followed in the subsequent
judgments, particularly in Reference No.l of 1988
made by the President (PLD 1989 Supreme Court 75),
Mian Nawaz Sharif's case (PLD 1993 Supreme Court
473) and also in Government of Balochistan v.
Azizullah Memon (PLD 1993 Supreme Court 341)
where I had observed as follows:--

"The interpretation of Constitution attracts most of


the principles employed in interpreting the Statutes,
but care has to be taken that it is not restrictive,
pedantic or limited.. Unlike other enactments the
Constitution is a living document which portrays the
aspirations and genius of the people and the nations
abroad. It is the basic structure on which the entire
edifice is built and therefore it has to be interpreted
in a manner to keep it alive and blossom in every
atmosphere and in every situation."

16. In Khalid Malik v. Federation of Pakistan (PLD


1991 Karachi 1) the same principle was reiterated in
the following- manner : --

"The Constitution is a living organism and has to be


interpreted to keep alive the traditions of the past
blended in the happening of the present and keeping
an eye on the future. Constitution is the symbol of
statehood keeping united people of different races,
diverse cultural, social, economic and historical
traditions. It provides a method of legitimacy to the
Government. It is. the power behind the organs and
institutions created by it. Constitution must be
interpreted keeping in view the entire canvass of
national fabric be it political, social, economic or
religious."

17. It is thus well settled that the Constitution should


not be interpreted to limit its scope and effect to only
contesting parties but one has to keep in mean that
its benefits, rights, liberties and safeguards are for the
service of all A citizens and people of the country.
There can be no better example of people's p
participation in the governance of the country and
threat to their such rights than the case in hand as it
involves questions which relate to public polity and
political party, its public image and people's right to
participate and vote during elections. Another
principle which is linked to it is the rule of
interpretation of the Legislative List mentioned in 4th
Schedule to the Constitution. Keeping in line with the
principles of interpretation of the Constitution an
item in the Legislative List has to be interpreted in a
wide B manner. The Schedule provides only the
general description on which B Legislature is
competent to legislate. While governing a country
under a S written Constitution several problems of
complex and unimaginable nature in different
situations and phases may arise which may require
law for its regulation. Therefore items in the
Legislative List should not be given a, restrictive
meaning. Reference can be made to Haider
Automobile Ltd. v, Pakistan (PLD 1969 SC 623).

18,?? Article 63 and section 8-B of the Act have to be


viewed in the light of the aforestated principles of
interpretation. The historical background of this
provision may also be relevant which has very
exhaustively been analysed by Mr. Syed Sharifuddin
Pirzada tracing it back to 1958 when attempt was
made to check defection and floor-crossing. However,
due to imposition of Martial Law such attempt did at
succeed and floor-crossing became the order of the
day. The Political Parties Act, 1962 was enacted at a
time when provisions relating to fundamental rights
were not a part of the Constitution of 1962. After the
fundamental rights were conferred, the Political
Parties Act was saved from its operation by
Constitution (First Amendment) Act, 1963 (Act I of
1964) which came into force on 10-1-1964. At that
time section 8(2) of the Act provided that only in case
of withdrawal of a person elected to the National or
Provincial Assembly as a candidate or nominee of a
political party was to be disqualified from being a
member of the Assembly for the unexpired period of
his term unless he has been re-elected at the bye-
election caused by his disqualification. After the
promulgation of Martial Law in 1969 the Act with its
section 8(2) continued in operation. On promulgation
of Constitution of 1973, disqualification was provided
under Article 63 but it did not contain disqualification
on the ground of defection or withdrawal. However,
an attempt was made to meet this problem of floor-
crossing and safeguard was provided in Article 96 of
the Constitution which was omitted by P.O. No.14 of
1985. Again in 1977 when Martial Law was imposed
this Act continued to remain in force. However,
Martial Law was lifted on 30-12-1985 but prior to it
the Constitution was revived on 2-3-1985 by the
Revival of Constitution of 1973 Order of 1985 and
drastic amendments were made in the Constitution
by Constitution (Eighth Amendment) Act XVIII of
1985. I would briefly state the statutes which have
amended the Act from time to time, particularly
section 8 or had added certain provisions in this
regard. The first amendment was made by inserting
section 8-A by Ordinance I of 1963 dated 7-1-1963.
Again by Ordinance XXI of 1974 dated 26-10-1974,
subsection (2) of section 8 wag omitted. Thereafter
again by Act XXI of 1975 (18-2-1975) subsection (2) of
section 8 alongwith section 8-A was omitted. By
Ordinance XXVIII of 1975 (26-12-1975) section 8 was
substituted as provided therein and was deemed to
have been so substituted on the 29th day of October,
1975. Again section 8 of the Act was substituted by
Ordinance V of 1976 (25-1-1976). By Ordinance XIX of
1976 (17-5-1976 section 8 of the Act was again
substituted by another section 8 contained in the said
Ordinance which was embodied in Act VIII of 1977
dated 9-1-1977. Again by Ordinance XLI of 1978 dated
17-10-1978 subsection (1) of section 8 was amended
and subsection (2) was added. By Ordinance III of
1985 (12-1-1985) proviso to subsection (1) of section
8 of subsections (3), (4) and (5) to section 8 were
added. Only five days thereafter Ordinance VI of 1985
was promulgated by which a further proviso to
subsection (1) to section 8 was added, subsections (3)
and (4) were omitted and subsection (5) was
amended. By Act XXII of 1985 (24-12-1985) new
section 8-B was added which provided for
disqualification of an elected member as a candidate
or nominee of a political party on ground of defection
or withdrawal of support. By Ordinance XIII of 1988
(4-10-1988) section 8 was amended and substitutions
were made. Thereafter by Ordinance X of 1990 (22-
10-1990) Explanation to section 8-B was substituted.
Section 8-B was amended by Act XXIII of 1992 (10-12-
1992). Thereafter section 8-B was amended by
Ordinance XXX of 1993 (7-10-1993) but it expired and
stood repealed as it was not laid before the National
Assembly.

19. The object of enumerating these enactments was


to demonstrate that the Government from time to
time in its wisdom amended the Act to regulate the
working of the political parties and the conduct of the
members elected on the ticket of any political party.
Finally at the time when the dispute arose in the
present case,. section 8-B provided for
disqualification on the ground of defection. Besides
the legislative measures taken to amend the
provisions of the Political Parties Act, the superior
Courts have also taken note of these provisions and
have made authoritative decisions. The provision of
section 8 was first considered in Ghulam Mustafa
Khar v. Chief Election Commissioner of Pakistan and
others (PLD 1969 Lah. 602) in which A.S. Faruqi, J.
speaking for the Bench observed as follows:--

"Section 8(2) of the Political Parties Act, 1962


contains a salutary principle which is recognised as a
well-established convention wherever a democratic
system of Government is followed and where
representatives of the people are elected as
candidates of a political party. The need for making a
legislative provision here may have been felt in view
of the experience of the past when frequent crossing
of the floor of the House by the members took place
which not only violated a well-established democratic
convention but also led to the unstability of the
Government. The law now provides that such a
conduct will lead to the disqualification of the
member."

20. Thereafter the question of defection was


considered in Khawaja Ahmad Tariq Rahim v. The
Federation of Pakistan (PLD 1992 SC 646) while in
Sardar Muhammad Muqeem Khoso v. President of
Pakistan (PLD 1994 SC 412) and Rai Rashid Ahmad
Khan v. President of Pakistan (PLD 1994 SC 36) P.O.
16/77 and P.O. 17/77 came up for consideration.

21. It has been contended that section 8B is ultra


vires of Article 63 of the Constitution. Article 63
enumerates disqualification for Members of the
Majlis-e-Shoora and also the Provincial Assemblies -
by virtue ,of Article 127.

?????????????????The disqualifications have


been enumerated in clauses (1)(a)t to (o) and clause
(p) which reads as follows:--

"Article 63(11:
(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."

22. A perusal of clause (1) of Article 63 will show that


it imposes conditions for the disqualification from
being chosen or elected or from being a member of
Majlis-e-Shoora. If any person suffers from any of the
disqualifications he stands disqualified from being
elected or chosen as, and from being, a member of
the Majlis-e-Shoora (Parliament) or the Provincial
Assembly as the case may be. Before such
disqualification may operate it is necessary that the
Member should be hit by any of the sub-clauses
mentioned in this Article. Before enumerating
disqualifications Article 63(1) uses the word "if" which
clearly signifies that unless any of the conditions
mentioned and disqualifications enumerated in either
of the such clauses is satisfied, a person cannot be
disqualified. The word "if puts a condition precedent
which has been enumerated in clauses (1)(a) to (p). In
New Webster's Dictionary Deluxe Encyclopaedic
Edition the meaning of the word "if has been given as
follows:-

"If", whether, lest; condition, in case that; on


condition that--
In Corpus Juris Secundum, Volume 42, the word it has
been defined as follows:--
"as a noun, an "if" is a condition, .a supposition, as in
the expressions, "There are too many ifs in the way"
and "to stand upon ifs and contingencies."

In its more frequent use as a conjunction introducing


a conditional sentence or clause, it means? granting,
allowing, or supposing that, or on condition that, in
case that, or in the case of; and sometimes it is
construed to mean provided, though, or when. The
term imports a condition or contingency .it is an
expressive word, quite commonly used to express a
condition or dependence on the happening of some
event, and is said to imply a condition precedent
unless it be controlled by other words.

In particular connections, the term has been held an


equivalent of "at" and "in case" or "in case of

Stround's Judicial Dictionary, Fourth Edition, page


1277--

"If' is sometimes qualificative as when a lease is


made, for years "if"? shall live so long. "If' in a
stipulation, will generally create a condition
precedent. "If' may create a reservation. "If' may
convey the meaning, on condition, provided always,
so that, and if it happen."

In State of Tamil Nadu v. Kodai Kanal Motor Union


(Pvt.) Limited . (PTCL 1987 (Foreign Cases) 375) while
interpreting section 10-A of the Central Sales Act,
1956 it was observed that the use of the expression
"if" simpliciter was meant to indicate a condition.

?????????????????23. From the meaning of the


word "if" it clearly indicates that it is a word putting
condition and such condition has been enumerated in
sub-clauses (a) to (p). Sub-clause (p) provides that a
?member 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.? Therefore it any
law has been framed providing for additional
disqualification it will also apply for the purposes of
enforcing disqualification provided by Article 63.?
????????????The learned counsel for the
respondents has referred to Messrs aider Automobile
Ltd. v. Pakistan (PLD 1969 SC 623) where it was held
that apart from the disqualification if the Legislature
is empowered to legislate in that field additional
conditions can be provided by a statute. Mr. Khalid
Anwar relying on this judgment has referred to Item
No. 41 of the Federal Legislative List which read as
follows:--

"Elections to the office of President to the National


Assembly, the Senate and the Provincial Assemblies;
Chief Election Commissioner and Election
Commissions."
Therefore the Federal Legislature is competent to
make laws in respect of elections to the National
Assembly, Senate and the Provincial Assemblies. As
held in Messrs Haider Automobile Ltd.'s case the item
in the Legislative List has to be liberally interpreted. In
the light of the principles of interpretation restrictive
meaning cannot be given to item No. 41 limiting it
only to election of National Assembly, Senate and
Provincial Assemblies. The term "election to? the
members of the Assemblies" should. be given a wide
meaning to? incorporate all such provisions by which
pre disqualifications, post? disqualifications and
conditions can be made which may regulate the
conduct of the members, create discipline amongst
them and save the political and social structure from
crumbling. In this view of the matter section 8-B
cannot be, treated as ultra vires the? constitution and
there is no conflict with Article 63 as it adds
disqualification which is not in conflict with the object
or the .provisions of Article 63(1) which are not
exhaustive.

24. It has been contended that Article 63(2) provides


a forum for deciding F cases of disqualification arising
under Article 63(1) and Chief Election F Commissioner
has been authorised in that behalf but as section 8-B
provides a? different forum for determining the case
of defection, there is a conflict between the provision
of the Constitution and the statute and, therefore,
the Constitutional provisions should prevail. As
section 8-B has competently been legislated providing
for a disqualification which is not found in Article
63(1)(a) to (o) the Legislature was competent to
provide a proper forum for determining such newly
created disqualification. The forum provided by
section 8-B is the Election Commission which is
constituted by the Chief Election Commissioner, who
should be a person unless he is or has been a Judge of
the Supreme Court or is or has been a Judge of a High
Court and is qualified to be appointed a Judge of the
Supreme Court (Article 213) and two ; members of
the Commission each of whom shall be a Judge of the
High Court (Article 218). Section 8-B of the Act also
provides an appeal against the order of the
Commissioner directly to the Supreme Court. This
forum and remedy provided by the Act cannot be said
to operate oppressively or disadvantageously to an
aggrieved party. It provides for the highest forum of
judicial hierarchy to decide the matter. Whereas the
disqualifications E mentioned in- Article 63(1)(a) to
(o) are to be adjudicated by the Chief F Election
Commissioner alone. Viewed from this angle there is
no conflict between Article 63(2) and section 8-B. A
comparative study of Article 63 and section 8-B of the
Act will show that they. operate in different fields. For
.disqualification of a member under Article 63(1)(a) to
(o) it is the Speaker or the Chairman as the case may
be who refer the question to the Chief Election
Commissioner. However under section 8-B(2) only in
cases of defection or withdrawal from a political party
which are not provided in Article 63, the Leader of the
Parliamentary Party concerned has to take a
reference to the Election Commission. The
introduction of such a procedure and forum has the
sanction of the Constitution. Considering the gravity
of defection and its adverse effect on the body
politics, creating erosion and knocking the foundation
of a Constitutional polity, it was necessary to give a
special treatment to this problem left out by the
Constitution to be separately legislated. Where
Legislature is competent to create offence and
disqualification which require adjudication it is
necessary to provide a forum for such determination.
This is incidental or ancillary to the matter and ,item
of the Legislative List under which such law is
enacted. In my humble view the appeals are
maintainable.

(SD.)
SALEEM AKHTAR, J

SAIDUZZAMAN SIDDIQUI, J.--- The abovementioned


two direct appeals under section 8-B(3) of the
Political Parties Act, 1962 are filed by Pir Sabir Shah,
the Leader of the Parliamentary Party of Pakistan
Muslim League (Nawaz Group) in the Provincial
Assembly of,, North-West Frontier Province against
the majority decision of Election Commission -of
Pakistan dated 5-5-1994. For the sake of convenience,
I will hereinafter refer in this judgment, the 'Political
Parties Act, 1962, Pakistan Muslim League (Nawaz
Group), the Election Commission of Pakistan, the
Provincial Assembly of North-West Frontier Province,
the Constitution of Islamic Republic of Pakistan, 1973,
the Constitution of Islamic Republic of Pakistan, 1962,
and the Constitution of Islamic Republic of Pakistan,
1956 as `the Act', `PML (N)', `the Commission', `the
N.-W.F.P. Assembly', `the Constitution of 1973', `the
Constitution of 1962' and `the Constitution of 1956',
respectively.

The appellant in his capacity as the Leader of


Parliamentary Party of PML(N) in the N.-W.F.P.
Assembly filed two references before the
Commission, against the MPAs Shad Muhammad
Khan and Akhtar Hussain, respondents in Civil
Appeals Nos.381 and 382 of 1994 respectively,
hereinafter to be referred as `respondents', alleging
that the respondents after their. election as the MPAs
of N: W.F.P. Assembly as the candidates of PML(N) on
the party ticket, have defected/withdrawn from the
party rendering themselves disqualified from being
the members of N: W.F.P. Assembly from the date of
their defection, for the unexpired period of their term
as such members. The respondents did not dispute
before the Commission that they were elected as
members of N.-W.F.P. Assembly on the ticket of
PML(N), but denied that they had defected or
withdrawn from their party PML(N), at any time. The
Commission after recording evidence of the parties
by a majority opinion of its two members, held that
the appellant failed to establish beyond reasonable
doubt that the respondents have defected from their
parliamentary party PML(N) and consequently,
dismissed the references filed by the appellant
against the respondents under section 8-B of the Act..
The learned Chief Election Commissioner, however, in
his dissenting note reached a contrary conclusion,
that the facts and circumstances of the case did show
that the respondents had defected/withdrawn from
their parliamentary party, PML(N), and. accordingly
disqualified them from being the member of N.-
W.F.P. Assembly for the unexpired term of their
office. Before the Commission, the respondents
besides contesting the cases on merit, had also
challenged the validity of section 8-B of the Act, but
the Commission unanimously declined to go into this
question on the ground that the Commission being a
Tribunal of limited jurisdiction had no plenary
jurisdiction to decide the vires of the law which
conferred jurisdiction on it. The respondents,
therefore, besides contesting these appeals on merits
have once again agitated the issue regarding
Constitutional validity of section 8-B of the Act. The
respondents also filed applications in these appeals
praying that Federal Government and Government of
N.-W.F.P. may also be impleaded as respondents in
these appeals and notices may be issued to the
Attorney-General and the Advocate?General of N.-
W.F.P. under Order XXVII-A, R.1 of the Code of Civil
Procedure, 1908, as the question of vires of a Federal
Law and interpretation of various Articles of
Constitution are involved in these appeals. These
applications filed by the respondents were disposed
of by the Court on 16-10-1994 as under:--

"Issue notice to the Attorney-General for Pakistan


and the Advocates- General of the Provinces for
appearance in the Court on 23-10-1994 to assist the
Court on the question whether section 8-B of the
Political Parties Act, 1962 is ultra vires to any
provision of the Constitution."

The arguments on the Constitutional validity of


section 8-B of the Act were heard as a preliminary
objection in the cases. However, during the course of
hearing of this preliminary objection the learned
Chief Justice and some other learned members of the
Bench (Irshad Hasan Khan and Muhammad Munir
Khan, JJ.) expressed doubts about the maintainability
of the above appeals before this Court in view of the
repeal of Ordinance XXX of 1993 which amended they
old section 8-B of the Act taking away the right of
appeal to this Court against the decision of the
Commission. The learned counsel for the parties,
therefore, besides arguing the preliminary objection
at length, also addressed lengthy arguments on the
maintainability of these appeals before this Court.
Since the question of maintainability of these appeals
was raised suo Motu by the Court and it goes to the
very root of these cases, the decision on this point, in
my opinion, must precede the decision on other
contentions in these cases.

In order to understand the objection relating to


maintainability of the above appeals in its true
perspective, it would be appropriate to refer here
briefly the history of legislation in Pakistan, dealing
with the subject of defection or floor-crossing by the
elected members of political parties in the
Assemblies. The earliest attempt to seek a legislation
on this subject found expression in the two identical
motions (Private Members') Bill introduced by two
members of then National Assembly of Pakistan,
Messrs Ch. Azizuddin and Yusuf Haroon, in the
Assembly on 5-9-1958. However, before any action
could be taken on these Bills, the country was placed
under Martial Law on 7-10-1958, resulting in the
dissolution of Assemblies and abrogation of the
Constitution of 1956. The first legislative measure,
therefore, dealing with the vice of floor-
crossing/defection by elected members of a political
party, was introduced by promulgating the Act which
came into effect on 15-7-1962. Subsection (2) of
section 8 of the Act was in these terms:--

(2) ??????????If a person, having been elected to


the National or a Provincial Assembly as a candidate
or nominee of a political party, withdraws himself
from it, he shall, from the date of such withdrawal, be
disqualified from being a member of the Assembly for
the unexpired period of his term as such member
unless he has been re-elected at a bye-election
caused by his disqualification."
At the time the Act was promulgated, the
Constitution of 1962 was enforced in its original form.
Chapter-1 in Part 11 of the Constitution of 1962 with
the heading "Fundamental Rights" containing Articles
6 to 19 was subsequently substituted on 16-1-1964
through Constitution (First Amendment) Act, 1963,
(Act No. I of 1964). Simultaneously, Schedule IV was
also added in the Constitution of 1962 which besides
giving protection to the Act, provided immunity to
various Presidential Orders, Martial Law Regulations,
Central Acts, Ordinances and West Pakistan Act
specified in the schedule, from being challenged on
the ground of repugnancy to Article 6 of the
Constitution of 1962. Section 8(2) of the Act thus held
the field until it was omitted with retrospective from
8-5-1974 by Act XXI of 1975 passed on 18-2-1975. In
the meantime, Constitution of 1973 was adopted.
While the Constitutional Bill was being piloted in the
Assembly, the then Law Minister; Mr.,Abdul Hafeez
Pirzada in his speech delivered in the Assembly on
that occasion, stressed the need for discouraging the
tendency of opportunism; adventurism and defiance
by the members of political parties of the whip of the
party whip. These observations of the then Law
Minister found expression in the proviso to sub-
clause (5) of Article 96 of the Constitution which
reads as follows:--

"Article 96:

(1) ????????????????????????????A resolution


for a vote of no-confidence may be passed against
the? Prime Minister by the National Assembly.

(2) ??????????A resolution referred to in clause (1)


shall not be moved in the National Assembly unless,
by the same resolution, the name o1 another
member of the Assembly is put forward as the
successor.

(3) ??????????A resolution referred to in clause (1)


shall not be moved in the National Assembly while
the National Assembly is considering demands for
grants submitted to it in the Annual Budget
Statement.

(4) ??????????A resolution referred to in clause (1)


shall not be voted upon before the expiration of three
days, or later than seven days, from the day on which
such resolution is moved in the National Assembly.

(5) ??????????If the resolution referred to in clause


(1) is passed by a majority of the total membership of
the National Assembly, the President shall call upon-
the person named in the resolution as the successor
to assume office and on his entering upon office his
predecessor and the Federal Ministers and Ministers
of State appointed by him shall cease to hold office:

Provided that, for a period of ten years from the


commencing day or the holding of the second general
election to the National Assembly whichever occurs
later,. the vote of a member, elected to the National
Assembly as a candidate or nominee of a political
party, cast in support of a resolution for a vote of no-
confidence shall be disregarded if the majority of the-
members of that political party in the National
Assembly has cast its votes against the passing of
such resolution.
(6) :If a resolution referred to in clause (1) is not
passed, another such resolution shall not be moved
until a period of six months has elapsed."

After adoption of Constitution of 1973, though


subsection (2) of section 8 of the Act, which provided
for disqualification of an elected member of an.
Assembly who after his election on the ticket of a
political party defects or. ,withdraws from that party,
was omitted from the Act, but the proviso to clause
(5). - of Article 96 of the Constitution of 1973 which
provided that if a member of Assembly elected as a
candidate or nominee of a political party casts his
vote on a resolution of no-confidence contrary to the
majority vote of that party shall. be disregarded,
served as an effective check against the defection of
elected members of the Assembly of a political party.
Article 96 remained part of the Constitution of 1973
until 2-3-1985 when it was omitted by Presidential
Order No. 14 of 1985. After omission of Article 96 of
the Constitution of 1973, there was no law in the field
in Pakistan dealing with floor-crossing or defection by
the elected members of the Assemblies belonging to
a political party. To fill this gap, Act XXII of 1985 was
passed by the then Assembly of Pakistan on 24-12-
1985 which added following section 8-B in the Act:

"8-B.Disqualificution on ground of defection, etc.--(1)


If a member of a House,--

(a) ??????????having been elected as such as a


candidate or nominee of a political party, or

:(b) ?????????having been elected as such otherwise


than as a candidate or nominee of a political party
and having become a member of a political party
after such election, defects or withdraws himself from
the political party he shall, from the date of such
defection or withdrawal, be disqualified from being a
member of the House for the unexpired period of his
term as such member, unless he has-been re-elected
at a bye-election held after his disqualification.

(2) ??????????If any question arises whether a


member of a House has become disqualified under
subsection (1) from being a member, the question
shall, on a reference by the Leader of the
Parliamentary Party concerned, be determined by the
Election Commission.

(3) ??????????An appeal against a decision of the


Election Commission under subsection (2) shall lie to
the Supreme Court, within thirty days of the decision.

Explanation.--In this section, "House" means a House


of the Majlis Shoora (Parlaiment) and includes a
Provincial Assembly."
By Ordinance X of 1990 promulgated on 22-10-1990
the following Explanation was added to section 8-B of
the Act:--

"Explanation.,--For the purpose of this section. (a) a


member of a House shall be deemed to defect a
political party if he--

(i) ????????????votes or abstains from voting in


such House contrary to any direction issued by the
disciplinary committee of the Parliamentary Party to
which he belongs or, if there be no disciplinary
committee of such Parliamentary Party, by the
Parliamentary Party itself without obtaining in either
case prior permission of the disciplinary committee
or, as the case may be, of the Parliamentary Party,
and such voting or abstension has not been condoned
by the Parliamentary Party within thirty days from the
date of such voting or abstension;

(ii) ??????????accepts any office or under the


Government. of a political party other than the one to
which he belongs without obtaining the prior
permission in writing of the Parliamentary Party to
which he belongs;

(b) ????????????????????????????"House"
means a House of the Majlis-e-Shoora (Parliament)
and includes a Provincial Assembly;

(c) ??????????"disciplinary committee of a


Parliamentary Party" means a committee of not less
than five members who for the time being are elected
by the Parliamentary Party concerned;"

Ordinance VIII of 1991 promulgated on 1-2-1991


repealed Ordinance X of 1990 and re-enacted the
above Explanation added to section 8-B ibid on 22-10-
1990. Ordinance VIII of 1991 was, however, not
placed before the Assembly as required by Article 89
of Constitution of 1973 with the result it lapsed after
4 months of the date of its promulgation and
consequently stood repealed under the Constitution.
With the repeal of Ordinance VIII of 1991, the
Explanation added to section 8-B of the Act also stood
repealed from the statute book. Before the general
elections of 1993, Ordinance XXX of 1993 was
promulgated by the Care-taker Government on 7-10-
1993, which made the following amendments in
section 8-B of the Act:--

"2.
????????????????????????????Amendment of
section 8-B. Act III of 1962.--In the Political Parties
?????????????????Act, 1962 (III of 1962), in
section 8-B,--

(a) ??????????in subsection (2), for the words


"Election Commission" the words "majority of the
members of such. Parliamentary Party of the House"
shall be inserted; and
(b) ????????????????????????????for
subsection (3), the following shall be substituted,
namely:

"The member against whom decision has been made


by the Parliamentary Party under subsection (2) may,
within ten days, prefer an appeal before the Speaker
of the National Assembly or Provincial Assembly or
the Chairman of the Senate, as the case may be, who
shall decide the appeal within thirty days."

Ordinance XXX of 1993 was also not placed before


the Assembly as required by Article 89 of the
Connstitution of 1973 and accordingly, it stood
repealed on the expiry of 4 months from the date of
its promulgation, and consequently the amendments
introduced by it in the Act were also repealed.

The objection to the maintainability of the above


appears proceeds on the assumption that as a result
of insertion of new section 8-B in the Act by
Ordinance lXX of 1993, the original section 8-B stood
removed from the statute book anti therefore, when
Ordinance XXX of 1993 was repealed the original
section 8-B of the Act could not revive. In support of
the above assumption reference was made to clause
(a) of Article 264 of the Constitution of 1.9'73, which
reads as under:--

"264. Where a law is repealed, or is deemed to have


been repealed by, under, or by virtue of the
Constitution, the repeal shall not, except as otherwise
provided in the Constitution,---

(a) ??????????revive anything not in force or


existing at the bane at which the repeal takes effect;

(b) ??????????affect the previous operation of the


law or anything duly done or suffered under the law;

(c) ??????????affect arty right, privilege, obligation


or liability acquired, accrued or incurred under the
law;

(d) ??????????affect any penalty, forfeiture or


punishment incurred in respect of arty offence
committed against the law; ox
(e) ??????????affect any investigation, legal
proceeding or remedy in respect of any such right,
privilege, obligation; liability, penalty, forfeiture or
punishment;

arid any such investigation, legal proceeding or


remedy may be instituted, continued or enforced,
and any such penalty, forfeiture
?????????????????. ????????????????or
punishment may be imposed, as if the law had not
been ` repealed."

The language of Article 264 of the Constitution, of


1973 embodies a rule of interpretation similar to
section 6 of the General Clauses Act. However, the
provisions of General Clauses Act cannot be called in
aid while 1 interpreting the provisions of the
Constitution in the absence of a provision in t the
Constitution of 1973 extending the application of the
provisions of General Clauses Act to the Constitution.
However, before considering the effect of
repeal provided in Article 264 of the Constitution of
1973, it will be appropriate to determine the scope
and nature of the power of President conferred under
Article 89 of the Constitution of 1973 to promulgate
Ordinance. Article 89 of the Constitution of 1973
reads as follows:---

"89.--(1) The President may, except when the


National Assembly is in session, if satisfied that
circumstances exist which render it necessary to take
immediate action, make and promulgate an
Ordinance as the circumstances may require.

An Ordinance promulgated under this Article shall


have the same force and effect as an Act of \Majlis-e-
Shoora (Parliament) and shall no subject to like
restrictions as the power of Majlis-e-Shoora
(Parliament) to make law, but every such Ordinance.-,

(a) ??????????shall be laid--

(i) ????????????before the National Assembly if?


contains provisions dealing with all or any of the
matters specified in clause (2) of Article 73, and shall
stand repealed at the expiration of four months from
its promulgation or, if before the expiration of that
period a resolution disapproving it, passed by the
Assembly, upon the passing of that resolution;

(ii) ????????????????????????????before both


Houses if it does not contain provisions dealing with
any? of the matters referred to in sub-paragraph (i),
and shall stand ?????????????????repealed at
the expiration of four months from its promulgation
or, if before the expiration of that period a resolution
disapproving it is passed by either House, upon the
passing of that resolution; and,

' (b) may be withdrawn at any time by the President

(3) ??????????Without prejudice to the provisions


of clause (2), an` Ordinance laid before the National
Assembly shall be deemed to be a Bill introduced in
the National Assembly.''.

Mr. Khalid Anwar, the learned counsel for the


appellant contended that the power of the President
to promulga , Ordinance under Article 89 of the
Constitution of 1973 is in the nature of an
administrative fiat as this power exercised by the
President on the advice of the Prime Minister. The
learned counsel also contended that the power to
promulgate an Ordinance under Article 89 ibid is very
limited and circumscribed by the conditions
mentioned in that Article. The power under Article 89
ibid, according to the learned counsel, therefore,
cannot be equated with the legislative power of the
Parliament which is the supreme body under the
Constitution of 1973 and is free to legislate without
any such constraint: Mr. Khalid Anwar further
contended that an Ordinance promulgated under
Article 89 ibid, in any case, is a temp or an legislation
keeping in view the scope of the power, and,
therefore, if such an Ordinance is not approved by
the Parliament as provided under Article 89 ibid or it
stands repealed, any change brought about through
such temporary ????????????????legislation in a
permanent legislation loses its validity on such repeal.
The learned counsel for the appellant accordingly
submitted that on repeal of Ordinance XXX of 1993
the original provisions of section 8-B of Act stood
revived and therefore, the references filed by the
appellant before the Election Commission were fully
competent in law, so also the above appeals.
Mr. Sharifuddin Pirzada, the learned counsel for the
respondents though did not agree with the
contention of Mr. Khalid Anwar that the exercise of
the power by the President under Article 89 ibid is in
the nature of executive power but very candidly and
fairly stated that an Ordinance promulgated under
Article 89 of the Constitution of 1973 by the President
is only a temporary legislation and if it is not
approved by the Parliament in accordance with the
provisions of Article 89 ibid, the change brought
about by such an Ordinance in a permanent statute
loses its validity and the original provisions in the
statute shall stand revived on repeal of such
Ordinance. Therefore, the first question which
requires determination in the case is, whether the
power of President to promulgate an Ordinance
under Article 89 ibid is legislative in nature or it is only
an executive power. A legislative act is distinguished
from an executive action with reference to the power
of a 1 superior Court to examine its validity in
exercise of its power of judicial review. A legislative
act cannot be struck down by a Superior Court on the
grounds of mala fides, or lack of bona fides or non-
application of mind in exercise of such I ' power.
However, an executive action is not immune from
being challenged on these grounds under Article 199
of the Constitution of 1973. An Ordinance
promulgated by the President has the same force and
effect as an Act of Parliament under Article 89(2) ibid,
though the exercise of power by the President is
circumscribed by the conditions mentioned in that
Article. In the' case of Fauji Foundation and another v.
Shamimur Rehman (PLD 1983 SC 457) the power of
President to issue Ordinance was challenged on the
ground of being mala fide. This Court after an
exhaustive discussion repelled the contention on the
ground that a legislative act cannot be challenged on
the ground of mala fides or lack of bona fides. Article-
123 of the Indian Constitution which is similar to
Article 89 of the Constitution of 1973 and confers
power on the Indian President to promulgate
Ordinance while the Assembly is not in session or it
stands dissolved, is described in the marginal note of
the Article as "the legislative power of the President".
In the case of K. Nagaraj and others v. State of Andhra
Pradesh and another (AIR 1985 SC 551), the Indian
Supreme Court while interpreting the scope of the
power of the Governor, which is similar to the power
of President to promulgate an Ordinance when the
Provincial Assembly is not in session, held as follows:-
-

"31. ???????It is impossible to accept the submission


that the Ordinance can be invalidated on the ground
of non-application of mind. The power to issue an
Ordinance is not an executive power but is the power
of the executive to legislate. The power of the
Government to promulgate an Ordinance is
contained in Article 213 which occurs in Chapter IV of
Part VI of the Constitution. The heading of that
Chapter is "Legislative Power of the Governor". This
power is plenary within its field like the power of the
State Legislature to pass laws and there are no
limitations upon that power except those to which
the legislative power of the State Legislature is
subject. Therefore, though an Ordinance can be
invalidated for contravention of the Constitutional
limitations which exist upon the power of the State
legislature to pass laws it cannot be declared invalid
for the reason of non-application of mind, any more
than any other law can be. An executive act is liable
to be struck down on the ground of non-application
of mind. Not the act of a Legislature:"

In the Constitution of 1956 a similar provision


authorising the president to promulgate Ordinances
while the National Assembly was not in session or
stood dissolved, was described in the marginal note
as the 1k Legislative Power of the President". The fact
that in the marginal note of "Article 89 of the
Constitution of 1973 the power of the President to
promulgate ordinances is not stated to be a legislative
power or that the President promulgates an
Ordinance on the advice of the Prime Minister under
the scheme of the Constitution of 1973, cannot lead
to the conclusion that the owner exercised by the
President to promulgate Ordinances under Article 89
4f the Constitution of 1973 is not a legislative power
but an executive action. It ,j cannot be disputed that
an Ordinance promulgated by the President under
"Article 89 of the Constitution of 1973 cannot be
struck down under Article 199 4f the Constitution of
1973 on the ground that the President while
promulgating the Ordinance acted malafidely or there
was lack of bona fides in exercise of this power. The
Ordinance promulgated by the President can be
attacked only on the ground of being repugnant,
either to the fundamental tights or any of the
provisions of the Constitution of 1973.1 am;
therefore, of the view that the power of the President
to promulgate an Ordinance conferred finder Article
89 of the Constitution of 1973 is a legislative power
and not an executive fiat.

As to the effect of repeal of ordinance XXX of 1993


under the constitution of 1973 both, the learned
counsel for the appellant as welt as Respondents,
argued that the Ordinance XXX of 1993 promulgated
by tire president in exercise of power under Article 89
ibid. was a temporary legislation and therefore, on its
repeal after expiry of months period from the gate of
its promulgation, the changes introduced by it in
section 8-B of the Act also stood repealed and the
original provisions of section 8-13 stood revived on
such repeal. From a careful examination of Article 89
ibid, it is quite clear that K the legislative power
conferred by this Article on the President to
promulgate ordinance is circumscribed by these
conditions. Firstly, at the time the Ordinance is
promulgated by the President, the National Assembly
must not be in session anti circumstances exist which
render it necessary to take immediate action for
promulgation of the Ordinance. The Ordinance so
promulgated by the President is only a stop-gap
arrangement and a temporary measure, as this
Ordinance has to be placed before the National
Assembly if it pertains to matters specified in Article
73(2) of the Constitution and in alt other cases before
the Parliament, within 4. months of the date of its
promulgation, unless it is earlier withdrawn by the
President or disapproved by the rational Assembly or
Parliament as the case may be. It is, therefore, quite
clear that the power to promulgate an Ordinance by
the President under Article 89 of the Constitution of
1973 is designed to meet a situation when the
Iegslation? is required urgently and the Assembly is
either not in session car unable to function for
reasons of having been dissolved in accordance with
the provisions of the Constitution of 1973. But the
Ordinance so promulgated by the President does not
acquire the status of a permanent Act of Parliament
as it loses its validity on, expiry' of 4 months period
froth .the date of its promulgation if the National
Assembly car Parliament as the case may be, does not
approve the legislative measure within that period. In
the case of Sargodha?hers Bus Service Limited and
others v. Province of West Pakistan etc. (PLD 1959 C
127), this Court examined the effect of repeal of
Ordinance XXXV of 1956 promulgated by the
Governor of West Pakistan in exercise of his power
conferred under Article 1112 of the Constitution of
3.956. In that case, the Government of West Pakistan
used tea realise taxes from the transport companies
up to 17-12-1956 in the Province of Punjab in
accordance with the provisions of the Punjab Motor
Vehicles Taxation Act, 1924 (IV of 1924), After
creation of cane unit, the Governor of West Pakistan
promulgated Ordinance XXXV of 1956 in exercise of
his power conferred tinder Article 1112 ibid which
cams: into effect on 1-10-1956? This Ordinance
reeled the Punjab Motor Vehicles Taxation Act, 1924
and the Government started collection of taxes on
the basis of the flat rate prescribed under the
Ordinance. Ordinance XXXY of 1956 was laid before
the Assembly on -3-1157 but before the Assembly
could convert the Ordinance, into an act of legislature
it was suspended by the President under .Article 193
of the Constitution o195& The Ordinance
promulgated by the Governor vas valid only for a
period of weeks under the provisions of Article 102
ibid anti therefore, it ceased to be operative on 11-3-
1957, The Legislative Assembly of West Pakistan
passed Act III of 1958 on 24-4-1958 incorporating the
provision of Ordinance XXXV of 1956. It was
contended before this Court on behalf of the
petitioners in the alcove-cited case that as a result of
repeal of Ordinance XXXV of 1956 '? which in turn had
repealed Punjab Motor Vehicles Act, 19"24 there was
no law in the field between the elates the Ordinance
XXXV of 19was repealed and Act III of 1958 was
passed, and as such the demand of recovery of taxes
during the interregnum on the basis of the provision
of repealed Punjab Motor Vehicles Act, 1924 was
illegal. The contention was repelled by this Court as
follows:--

"We are unable to accept Mrs Broi's argument, which


carries with it the implication that during the interval
of more than 1months between the expiry of the
Ordinance on the 11th? of March, 1957 and the
coming into force of Act XXII of 1958 on the 24th of
April, 1958, there was a blank in the statute book on
the subject of imposition of tax on motor vehicles in
West Pakistan, as according to Mr. Brohi, on the
expiry of the Ordinance the old Taxation Act of 1924
was not revived. The general principle is that the
duration of statute passed y an authority empowered
to pass permanent laws is prima facie perpetual
unless it is intended to temporary, and the Act of
1924 vas a permanent Act. Tote question is whether
it could be permanently repealed y an Ordinance
made by the Governor? The Governor derived this
power from Article 102 of the late Constitution, the
relevant portions of which run thus:--

'(I) ??????????If at any time, except when the


Provincial .Assembly in session, the Governor is
satisfied that circumstances exist which render
immediate action necessary, he may make and
promulgate such Ordinance as the circumstances
appear to him to require, and any Ordinance so made
shall have the like force of law as arc Act of the
Provincial Legislature; but the-ewer of making
Ordinances under this clause shall be subject to the
like restrictions as the power of the Provincial
Legislature to make hours, and any Ordinance made
under this clause may be controlled or superseded
bony such Act: ????????????????????,

(2) An Ordinance promulgated under clause (i) shall


be laid before the Provincial Assembly anti shall cease
to operate at the expiration of six weeks from the
next meeting of the Assembly, or if a resolution
disapproving it is passed y the Assembly, upon the
passing of that resolution!

It follows from the language of this Article that the


legislative power of the Governor vas limited by the
following conditions:
(1) that the Provincial Assembly was not in session,
(2) that immediate action was necessary,
??? (3) that the Ordinance was liable to be laid before
the Provincial Assembly when it met next, and
(4) ?????????that it was to cease to operate:--
(a) ????????????????????????????if a
resolution disapproving it was passed, and
(b) ????????????????????????????in an event
at the expiration one six weeks from the meeting of
the Assembly.
?????????????????The powers of legislature of
the Governor, therefore, were of a transitory,
temporary and contingent nature. They are, no
doubt, co?extensive with those of the Provincial
Assembly, .as argued by Mr.

???????????????????????????????????Brohi,
but this can be said only with regard to field of
legislation as regards the Provincial list and the
concurrent list of subjects as given in the Fifth
Schedule to the late Constitution. But it is evident
that the powers of the Assembly are more extensive,
inasmuch as it was empowered to enact permanent
Acts at all times not subject to any limitations as the
Governor's powers are meant to be by Article 102,
which are to be exercised in emergency and with
temporary effect only, and carry with them the
implication that when a permanent Act is repealed by
an Ordinance, the Act will revive on the expiry of the?
ordinance. In these cases we are only concerned with
the question of the entire repeal of permanent Act by
an Ordinance and we are not called upon to decide
the effect of mere amendment of any text of an Act.
In the view that we have held, subsection (2) of
section 4 of the West Pakistan General Clauses Act,
1956, as amended by West? Pakistan General Clauses
Amendment Act (III of 1957), which. Puts the effects
of repeal of a permanent statute by an Act of the
Provincial Legislature and by Ordinance on the same
footing by extending the application of clause (a) of
subsection (1) of section 4, is to that extent ultra
vires. The Governor having no power of permanent
legislation, the permanent repeal of a perpetual
status by Ordinance is ultra vires, and the repealed
Act revives as soon as an Ordinance `ceases to
operate', irrespective of the fact whether in the
Ordinance the repeal was intended to be permanent
or temporary."

Similarly, in the case of Government of Punjab


through Secretary, Home Department v. Zia Ullah
Khan . (1992 SCMR 602), this Court while considering
the effect of repeal of Ordinance XIV of 1988 which
amended subsection (2) of section 1 of the Special
Court for Speedy Trials Act and which stood repealed
in terms of clause (2) of Article 89 of the Constitution
of 1973, made the following observations:--

"12. ???????It may be stated that an Ordinance is a


temporary legislation. It cannot be given permanency
in the absence of any sound legal principle or backing
of law. In this regard it may be advantageous to quote
the following passage from the judgment of this Court
in the case of Mahreen Zaibun Nisa v. Land
Commissioner; Multan and others (PLD 1975 SC 397):
.

It will be seen that this Article intended to make


provision for emergency or temporary legislation at
any time when the Provincial Assembly stands
dissolved or is not in session, and it is for this reason
that clause (2) of this Article, while conferring on an
Ordinance promulgated by the Governor the same,
force and effect as an Act of Provincial Legislature,
contemplates that every such Ordinance shall be laid
before the Provincial Assembly and shall cease to
operate at the expiration of six weeks from re-
assembly thereof, or if before the expirations of that
period a resolution disapproving it is passed by the
Provincial Assembly, upon the passing of that
resolution. The same clause also provides that the
Ordinance may be withdrawn at any time by the
Governor.? An Ordinance is, therefore, essentially in
the nature of a temporary legislation, and its future
operation is made conditional on the approval of the
Provincial Assembly. The provisions contained in the
proviso to clause (4) could not, therefore, be
intended to confer permanency on an Ordinance, in
violation of the clear stipulation in clause (2) of the
Article.

Apart from this basic objection, resting on the very


nature of an Ordinance as a piece of temporary
legislation, the proviso itself, as relied upon by the
learned Attorney-General, makes it clear that it has a
narrow and limited purpose, namely, of meeting the
requirement specified in the proviso to clause (2) of
Article 143 of the Interim Constitution in relation to
the enactment of provincial laws on subjects included
in the Concurrent Legislative List. As that proviso does
not make a separate or special mention of the
manner in which an? Ordinance shall be promulgated
in the Concurrent field, the proviso to clause (4) of
Article 135 contains a-special direction in this behalf
to the effect that an Ordinance containing provisions
inconsistent with an Act of the Federal Legislature or
an existing law with regard to a matter enumerated in
the Concurrent Legislative List .shall be deemed to be
an Act of the Provincial Legislature which has been
reserved for the consideration of the President and
assented to by him, provided the Ordinance is made
by the Governor in pursuance of instructions from the
President. Thus the proviso in question merely seeks
to apply to an Ordinance the special stipulation
contained in a subsequent Article on the subject of
legislation in a Concurrent field, but does not have
the effect of rendering the Ordinance promulgated by
the Governor as a permanent Act of the Provincial
Legislature for all purposes." '

We may also refer to the following observations of


the Privy Council in the case of Gooderham and
Worts Ltd. v. Canadian Broadcasting Corporation (AIR
1949 PC 90), on the question of effect of expiry of a
temporary amendment in an enactment:
"15. ???????This argument, at first sight attractive, as
a point of pleading, is, in their Lordships' opinion
untenable on a sound appreciation of the structure
and terms of the Act of 5th July, 1935, above-quoted.
The first temporary amending Act of 1933 repealed
certain provisions of the Principal Act of 1932 and
substituted other provisions in their place. The
operation of. this amending Act was continued down
to 30th June, 1935, by two further Acts. Then by the
Act of 5th July, 1935, its operation was further
extended to 31st March, 1936 but only till then. The
sections of the three temporary legislations were
repealed. The result is that on 31st March, 1936, the
temporary legislation contained in the first Act of
1933 repealing provisions of the principal Act of 1932
and substituting other provisions came to an end not
by the repeal of the temporary legislation but by the
efflux of the prescribed time. No question as to the
revival' of the temporarily repealed provisions of the
Principal Act of 1932 by the repeal of the repealing
legislation arises. The repeal effected by the
temporary legislation was only a temporary repeal.
When by the fiat of Parliament the temporary repeal
expired the original legislation automatically resumed
its full force ?"

In view of the above discussed legal position there is


no doubt in my I mind that on the repeal of
Ordinance? XXX of 1993, which was never placed
before the Assembly for approval and which stood
repealed on the expiry of 4 1 months period from the
date of its promulgation in accordance with the'
provisions of Article 89 ibid, the amendment
introduced in section 8-B by Ordinance XXX of 1993
stood removed from the statute book with the
consequence the original provisions of section 8-B of
the Act stood revived on such repeal. Therefore, the
original section 8-B was enforced both at the time the
two references were filed before the Election
Commission and the present appeals were filed
before this Court. The appeals, accordingly, were
competently filed before this Court under sub-clause
(3) of section 8-B of the Act.

Having dealt with the question of maintainability of


above appeals, I now revert to the preliminary
objections raised by the learned counsel for the
respondents as to the validity of section. 8-B of the
Act. Mr. Sharifuddin Pirzada, the learned counsel for
the respondents besides contending that the Election
Commission of Pakistan was fully competent to
determine the vires of section 8-B of the Act, assailed
the Constitutional validity of section 8-B of the Act on
the following grounds:

(1) ??????????That section 8-B is violative of the


provisions of Article 2-A of? Constitution of 1.973
inasmuch as the restraint put on an elected member
to exercise his right of vote in accordance with his
conscious, is in conflict with the Injunctions of Islam;

(2) ??????????that section 8-B of the Act violates


Articles 14 and 17 of the Constitution as the right to
become a member of a political party includes a right
to disassociate from that party, which is infringed by
the section 8-B of the Act:
?(3) ?????????that section 8-B of the Act is also
violative of Article 19 of the Constitution of 1973 as
it? to curtail the individual's right of freedom of
speech and expression guaranteed by the
Constitution;
(4) ??????????that section 8-B is in conflict with
Article 66(1) of the Constitution of 1973 which
provides immunity to the members of Parliament in
respect of the proceedings of Parliament and to the
exercise of right of vote in the Parliament;

(5) ??????????that the disqualification prescribed


under section 8-B of the Act is not covered by any of
the sub-clauses of Article 63 of the Constitution of
1973; and

(6) ??????????that the designation of Election


Commission as the forum to decide the question of
disqualification of an elected member of Parliament
under section 8-B of the Act is in conflict with the
forum prescribed under Article 63(2) of the
Constitution of 1973 and as such the forum
prescribed under the Constitution must prevail over
the forum designated-under a sub-Constitutional
legislation.

Mr.. Faqir Muhammad Khokhar, the learned Deputy


Attorney ?General of Pakistan, who appeared for
Attorney-General of Pakistan in these cases, took up
the position that section 8-B of the Act was ultra vires
of the Articles 66, 19, 63 and 25 of the Constitution of
1973. The Advocate-General, Punjab contended that
the provisions of section 8-B of the Act are ultra vires
of the provisions of Article 17 of the Constitution of
1973 under which the Legislate can impose only such
disqualification which are in consonance with the
expression sovereignty and integrity of Pakistan; used
in sub-clause (2) of Article 17 of the Constitution of
1973. The learned Advocate-General, Punjab also
cpntended that sub-clause (p) of Article 63(1) ibid
talks of the disqualification of a candidate at a pre-
election stage and, therefore, the law promulgated by
the Legislature in the form of section 8-B of the Act
which deals with the disqualification of an elected
member is invalid. The Advocate ?Generals of Sindh
and N.-W.F.P. adopted the arguments of the learned
Advocate-General, Punjab.. The learned Advocate-
General, Balochistan,? however, contended that
Election Commission being a Tribunal of limited
jurisdiction could not decide the question relating to
the vires of section 8-B of the Act, however, the
Supreme Court as an appellate authority and an apex
Court of the country is competent to go into the
question of vires and decide the same. effectively.
The learned Advocate-General, Balochistan, further
contended that section 8-B is neither repugnant to
the Injunctions of Islam nor it is repugnant to any of
the provisions of the Constitution of 1973. It was also
contended by the learned Advocate-General,
Balochistan, that accountability' is the essence of
democracy and an integral part of Islamic system of
governance and section 8-B while providing for
disqualification of an elected member of Assembly
belonging to a political party on account of his
defection from his party, only reiterated these well-
recognized principles. The learned Advocate?
General, Balochistan, urged that the restriction
imposed by section 8-B of the Act is otherwise
reasonable.

Mr. Khalid Anwar, the learned counsel for the


appellant, on the other hand contended that section
8-B of the Act is neither opposed to any of the
Injunctions of Islam nor it is in conflict with any of the
provision of the Constitution of 1973. The learned
counsel contended that the enumeration of
disqualifications of a member of Assembly in Article
63 of the Constitution of 1973 is neither exhaustive
nor it can be read as a clog on the power of
Parliament to prescribe further disqualification of
elected members through legislation. The learned
counsel contended that besides general power of
Parliament to enact laws on the subject of elections
to the office of President, the National and Provincial
Assemblies, Senate, Chief Election Commissioner .and
the Election Commission under item 41 of the Fourth
Schedule to the Constitution of 1973, the Parliament
has been specifically authorised to enact laws
prescribing disqualifications of elected members of
Assemblies under sub?clause (p) of Article 63(1) of
the Constitution of 1973. Replying to the objection of
the respondents that section 8-B is in conflict with the
provisions of Article 66 of the Constitution of 1973,
the learned counsel for the appellant intended that
section 8-B of the Act neither interfered with the right
of freedom of speech of members in the Assembly
nor it curtailed their right to vote in the Assembly.
The learned counsel contended that the
disqualification of a member of Assembly under
section 8-B of the Act arises not on account of his
exercise of - the right of vote or freedom of speech in
the Assembly or Parliament but on account of the Act
of defection from the political party on which ticket
he has been elected to the Assembly. The learned
counsel contended that the defection is a vice which
destroys the representative character of an elected
member of Assembly as observed by this Court in the
following passage in the case of Khawaja Ahmad Tariq
Rahim v. Federation of Pakistan (PLD 1992 SC 646):--

"The preamble to our Constitution prescribes that


`the State shall exercise its powers and authority
through the chosen representatives of the people.'
Defection of elected members has many vices. In the
first place, if the member has been elected on the
basis of a manifesto, or on account of his affiliation
with a political party or on account of his particular
stand on a question of public importance, his
defection amounts to a clear breach of confidence
reposed in him by the electorate. If his conscience
disctates to him so, or he considers it expedient, the
only course open to him is to resign, to shed off his
representative character which he no longer
represents and to fight a re-election. This will make
him honourable, politics clean, and emergence of
principled leadership possible. The second and more?
important, the political sovereign is rendered helpless
by such betrayal of its own representative. In the
normal course, the elector has to wait ?for years, till
new elections take place, to repudiate such a person.
In the meantime, the defector flourishes and
continues to enjoy all the wordly gains. the third is
that it destroys the normative moorings of the
Constitution of an Islamic State. The normative
moorings of the Constitution prescribe that
`sovereignty over the entire universe? belongs to
Almighty Allah alone, and the authority to be
exercised by the people of Pakistan within the limits
prescribed by Him is a sacred ??trust' and the State is
enjoyed to `exercise its powers and authority?
through the chosen representatives of the people'.
An elected representative who defects his professed
cause, his electorate, his party, his mandate, destroys
his own representative character. He cannot on the
mandated Constitutional prescription participate in
the exercise of State power and authority. Even by
purely secular standards carrying on of the
Government in the face of such defections, and on
the basis of such defections, is considered to be
nothing but `mockery of the democratic
Constitutional process'." Replying to the objection of
respondents that the forum prescribed under Article
63(2) of the Constitution of 1973 to determine the
disqualification of an elected member of the
Assembly, is in conflict with the forum designated
under section 8-13 of the Act and therefore, the
forum prescribed under the? constitution of 1973
must prevail over the forum designated in a sub-
Constitutional document, the learned counsel for the
appellant contended that the respondents are not
entitled to raise the question of competency of forum
in the circumstances of the case. It is contended by
Mr. Khalid Anwar that the respondents had raised?
objection to the competency of the reference filed by
the Speaker of N: W.F.P. Assembly under Article 63(2)
ibid before the Chief Election Commissioner on the
ground that such a reference can only be decided by
the election Commission, under section 8-B of the Act
and having succeeded in their objection before the
Chief Election Commissioner they did not press their
objection regarding competency of the reference
filed before the Commission. Therefore, the
respondents cannot now turn round and say that the
reference before Chief Election Commissioner was
competent but the reference before Commission was
incompetent.

I will first take up the objection of the respondents


that the forum designated under section 8-B of the
Act is in conflict with the forum prescribed by Article
63(2) of the Constitution of 1973. Before the
Commission, two sets of references were filed against
the respondents seeking their disqualification. One of
these references was filed by the Speaker of N: W.F.P.
Assembly before the Chief Election Commissioner
(C.E.C.) against the respondents under Article 63(2)
ibid. The other two references were filed against the
respondents by the appellant, in his capacity as the
Leader of the Parliamentary Party of PML(N) under
section 8-B of the Act. The respondents raised
objection regarding competency of all the references
filed against them. In the reference filed before the
C.E.C. by the Speaker of N: W.F.P. Assembly under
Article 63(2) ibid, the respondents raise objection
regarding competency of the reference on the ground
that a reference under Article 63(2) ibid cannot be
filed on the ground of defection as this ground was
not covered by any of the sub-clauses of Article 63(1)
ibid. The learned C.E.C. upheld the objection of
respondents and dismissed the reference of Speaker
holding that the reference on the ground of defection
of respondents from their party `PML(N)' is covered
by section 8-B of the Act. The respondents for
obvious reasons did not press their objection
regarding competency of the references filed against
them before the Commission, as is evident from the
majority decision of the two learned members of the
Commission as well as the minority decision of the
learned C.E.C. The respondents having objected to
the competency of references before the C.E.C. and
succeeded there and having given up the objection as
to the competency of references filed against them
before the Commission, cannot now turn round and
contend that C.E.C. alone was competent to decide
the reference against respondents alleging defection
l' from the party and that the reference before the
Commission was incompetent.(` Therefore, on the
short ground alone, the objection of respondents that
the reference before the Commission was not
maintainable must fail. However, I have also
examined the above objection on merits and find it
without substance.

Clause (2) of Article 63 of the Constitution of 1973


provides that if a question arises whether a member
of Parliament has become disqualified from being the
member of Majlis-e-Shoora, it shall be referred to the
Chief Election Commissioner, by the Speaker of
National Assembly, if the disqualification relates to
the member of National Assembly; and if such
member happened to be a member of the Senate,
the reference to Chief Election Commissioner is to be
made by the Chairman of the Senate. The
disqualifications of a member of Majlis-e-Shoora are
enumerated in sub-clauses (a) to (o) of clause (1) of
Article 63 ibid. From the scheme of Article 63 ibid, it
appears that it is designed to cater a situation when
the question of disqualification of a member of
Parliament is raised or arises during the proceedings
of Parliament inside the House. It is for this reason
that the right to make a reference to Chief Election
Commissioner is conferred expressly on the Speaker
of National Assembly or the Chairman of the Senate,
as the case may be. Under this provision of the
Constitution, the Leader of the Parliamentary Party or
any other person or authority has no right to refer the
matter of disqualification of the member of
Parliament to Chief Election Commissioner. As against
this, section 8-B of the Act applies to a totally
different and distinct situation namely, when a
member of the Assembly, after having been elected
as a candidate of a political party on the ticket of that
party, defects from his party.

Defection or withdrawal of a member of Assembly


from his party after he is elected as a candidate of
that party is not considered as a disqualification
under sub-clauses (a) to (o) of Article 63(1) of the
Constitution of 1973. Section 8-B of the Act while
making defection or withdrawal of a member of
Parliament from his party, a new ground of
disqualification of such member, also prescribed a
corresponding Superior Constitutional Authority, the
Election Commission of Pakistan consisting of Chief
Election Commissioner as the Chairman and two
serving Judges of the High Courts to be nominated by
the President in consultation with the Chief Justices
of High Courts concerned and the Chief Election
Commissioner as its members, as the forum for
deciding the cases of such disqualification. The
Election Commission while acting under section 8-B of
the Act entertains and decides cases only on the
ground of defection or withdrawal of a member of
Parliament from his political party after being elected
on the ticket of that party. It has no jurisdiction to
entertain a case of disqualification of a member of
the Assembly on any other grounds mentioned in
sub-clauses (a) to (o) of Article 63(1) ibid. Similarly, as
earlier pointed out, a reference regarding
disqualification of a member of Parliament on
grounds mentioned in sub-clauses (a) to (o) of Article
63(1) ibid can be made only by the Speaker of
National Assembly or the Chairman of Senate as the
case may be, while under section 8-B of the Act a
reference against a member of Assembly on the
ground of defection or withdrawal from the political
party, has to be made only by the Leader of
Parliamentary Party concerned. Again, under Article
63(2) of the Constitution of 1973 the decision of Chief
Election Commissioner is final and no appeal is
provided against it while a decision of the
Commission under section 8-B of the Act can be
challenged before the Supreme Court in accordance
with the provisions of section 8-B of the Act.
Therefore, the two forums, one designated under
Article 63 of the Constitution of 1973 and the other
under section 8-B of the Act, operate in different
fields and they neither overlap nor conflict with each
other in any manner. I, therefore, find no merit in the
objection of the respondents that the forum
prescribed under section 8-B of the Act is in conflict
with the forum designated under Article 63(2) ibid.

Before taking up various grounds of attack advanced


by the learned counsel for the respondents in support
of the arguments that the provisions of section 8-B of
the Act are in conflict with the provisions of the
Constitution of 1973, I think it necessary to dispose of
first the argument relating to the scope of the
authority of Commission as the original Tribunal and
this Court is an appellate authority under the Act to
determine the Constitutional validity of section 8-B of
the Act.

Mr. Sharifuddin Pirzada, the learned counsel for the


respondents contended that the fact that the
Commission while hearing the reference was acting
as a Tribunal of limited jurisdiction could not come in
its way in determining the Constitutional validity of
section 8-B of the Act. The learned counsel also
contended that in any case, this Court while hearing
appeal against the order of the Commission also acts
as a Court of record and an apex Court of the country,
therefore, in exercise of its Constitutional jurisdiction
it must decide the question of Constitutional validity
of section 8-B of the Act, irrespective of the fact that
the appeal before this Court is filed as a statutory
appeal. ????-

?????????????????The Advocate-Generals of
Punjab, Sindh and N: W.F.P. supported the contention
of Mr. Sharifuddin Pirzada while the learned
Advocate-General of Balochistan took up the position
that the Commission while acting under the
provisions of the Act could not examine the validity of
section 8-B of the Act on the touchstone of the
Constitution of 1973, being a Tribunal of limited
jurisdiction. However, according to the learned
Advocate-General of Balochistan, this Court while
hearing the statutory appeal acts as an apex Court of
the country and therefore, it is entitled to settle the
question of vires of section 8-B of the Act once for all,
both in exercise of its Constitutional jurisdiction as
well as being the apex Court of the country having
jurisdiction to do complete justice between the
parties.

Mr. Khalid Anwar, the learned counsel for the


appellant on the other hand contended that the
Commission being a Tribunal of limited jurisdiction
had no plenary jurisdiction to decide the vires of
section 8-B of the Act as the jurisdiction conferred on
the Commission was limited and it can only act within
the four corners of the Act. The learned counsel
further contended that similarly this Court while
hearing appeal arising under the statute acts merely
as a Court of. appeal under the statute and therefore,
it will have no jurisdiction to strike down a law on the
ground of being opposed to any of the provisions of
the Constitution. Large number of cases were cited at
the Bar in support of the respective contentions
advanced by the learned counsel for the parties.
From the above arguments, two questions arise for
determination. The first relates to the jurisdiction of
the Commission which is undoubtedly a Tribunal of
limited jurisdiction and secondly the jurisdiction of
this Court while acting as an appellate Court in
respect of the order passed by the Commission as a
Tribunal of limited jurisdiction. I will first deal with
the question of jurisdiction of the Commission to deal
with the Constitutional validity of section 8-B of the
,Act.

Mr. Sharifuddin Pirzada, the learned counsel for the


respondents in support of his contentions has cited
the cases of IA. Sherwani v. Government of Pakistan
(1991 SCMR 1041), Muhammad Hashim Khan v.
Province of Balochistan (PLD 1976 Quetta 59), Iqan
Ahmed Khurram v. Government of Pakistan (PLD
1980 SC 153) and Noor and another v. State (PLD
1973 SC 469). In Hashim Khan's case (supra), a
Division Bench of High Court of Balochistan while
dealing, with the petitions, under Article 199 of the
Constitution of 1973, which arose out of the service
matter repelled the contention of the petitioners in
that case that the Service Tribunal created under
Article 212 of the Constitution of 1973 being a
Tribunal of limited jurisdiction could not decide the
question of vires of a notification and therefore, such
question can be raised before the High Court in its
Constitutional jurisdiction in spite of the bar
contained in the Service Tribunals Act promulgated by
the Government. The contention of the learned
counsel for the petitioners was repelled by the
learned Judges of the Division Bench in the above
cases as follows:--

"We are unable to see any such limitation in the


powers of the ,Tribunal while hearing the appeals. On
the other hand, the Tribunal under section 5 of the
said Act is deemed to be Civil Court for the purpose of
deciding arty appeal before it with all the powers
under the Code of Civil Procedure.

As any other Civil Court the Tribunal to our mind will


have the jurisdiction to examine whether or. not a
law is void by reason of its conflict with the
Fundamental Rights or is otherwise ultra vires or that
the order made is mala fide. We are further inclined
to think that the conferment upon the Tribunal the
exclusive jurisdiction to adjudicate upon these
matters cannot be given any less effect even if it were
to be assumed, though as aforesaid there is no
warrant for such an assumption that one or the other
ground of challenge may not be available to the
petitioners before the Tribunal."

In the case of Iqan Ahmed Khurram (supra), this Court


approved the enunciation of law in the case of
Hashim Khan (supra), as follows:--

"In resolving the first controversy, the High Court


relied on the cases of Muhammad Hashim Khan and
others v. Province of Balochistan and others PLD 1976
Quetta 59 and Fazal Elahi Ejaz and others v.
Government of the Punjab and others, PLD 1977 Lah.
.549 and held that the Service Tribunal was
competent to examine the vires of the Rules and
determine its validity as by Article .212 of the 1973
Constitution and section 4 of the Service Tribunals
Act; 1973, it has been given the exclusive jurisdiction
to do so."

From the above observations of this Court in Iqan


Ahmed Khurram's case (supra), it is quite clear that
this Court approved the ratio in Hashim Khan's case
(supra), only to the extent that the Service Tribunal
being the Tribunal of exclusive jurisdiction was
competent to decide the vires of the rule which dealt
with the terms and conditions of service of a civil
servant. This Court while approving the ratio of
Hashim Khan's case (supra), had in view the
provisions of Article 212 of the Constitution of 1973,
which barred the jurisdiction of all other Courts and
Tribunal, including the jurisdiction of High Court and
this Court, while referring exclusive jurisdiction on the
Service Tribunal in respect of matters relating to
terms and conditions of service of a civil servant. In
Hashim Khan's case (supra), the Service Tribunal was
not called upon to determine the viers or vilidity of
the law under which it was acting or .is referred the
jurisdiction. The learned Judges of the High Court in
Hashim Khan's case (supra), were concerned only
with the validity of the Rule which related to the
terms and conditions of service of a civil servant. It
was in this behalf observed by this Court in lqan
Ahmed Khurram's case (supra), while approving the
ratio in Hashim Khan's case, that the vires of any rule
or law which related to the terms and conditions of
service of civil servant could also be determined by
the Service Tribunal. The learned counsel for the
appellant on the other hand has relied on the case
Fazlul Quader Ch. v. Muhammad Abdul. Haque (PLD
1963 SC 486), which more appropriately applies to
the issue? wised in the present case. In that case, this
Court while dealing with the competency of the Chief
Election Commissioner to examine the validity of a
sub-Constitutional measure, which allegedly came in
conflict with the provisions of the Constitution,
observed as follows:--

"The examination of the question under Articles 103


and 104 is somewhat simpler. For the present, I shall
assume that these Articles have not been amended.
Examined in that state, it is clear from clause (1) of
Article 104, that the Constitution regards the
assumption of an office of profit in the service of
Pakistan as a fact capable of instant proof, requiring
no ascertainment by any fact finding process, and
accordingly, this clause lays down a rule of automatic
application,? viz., that a person assuming such an
office of profit should forthwith cease to be member
of an Assembly. In such a case, there would naturally
and necessarily be no need whatsoever for the
matter to be referred to the Chief Election
Commissioner. It is only because the Article was
amended so as to exclude? Ministerships from the
category of offices of profit in the service of Pakistan,
that the question is at all raised, viz., that the
incurring of disqualification by being a Minister
should be referred to the Chief Election
Commissioner.? low, reference to clause (2) of Article
103 will show that it is only in regard to a certain
number of factual grounds capable of being
discovered by a fact-finding process that the function
of the Chief Election Commissioner is attracted for
making a declaration of disqualification or otherwise.
In the matter before us, there is no fact to be
ascertained, but there is a legal question of the
highest importance to be decided, namely, whether
the action of the President in' excluding Ministers
from the category of holders of offices of profit in the
service of Pakistan was an action which he was
empowered to perform in terms of Article 224(3).
This raises a question of conflict between the
Constitutional provision and a sub-Constitutional
instrument which might conceivably have a higher
status than law of a Legislature (if only because of the
absence from Article 224 of any provision to enable
such a law to be amended, or repealed by the
National Assembly). Such a question has no quality
similar to the questions of fact which fall within the
purview of the Chief Election Commissioner. He is a
statutory authority and must observe and obey the
law as he finds it. It will not be for him in the
discharge of his functions to question the vires of any
law. The law in this case is one made by the Chief
Executive of the country, in the exercise of a power
which is just short of Constitutional power. But the
question which arises immediately is done of
`preserving, protecting and defending the
Constitution', against a possible encroachment and
the Chief Election Commissioner has taken no oath to
`preserve, protect and defend the Constitution'. It
was strongly contended before us that the power of a
High Court, under Article 98 to issue orders e.g., in
the nature of a quo warranto was barred only if there
were another adequate remedy provided by law, and
it is for the High Court to be satisfied? regarding this.
It was urged that for the decision of such a question,
recourse to the Chief Election commissioner was
obviously a totally inadequate remedy. It is to my
mind inconceivable that the intention of the
Constitution could ever be that questions of this
nature should go before the Chief Election
Commissioner, and on the other hand, every? reason
of a general or a special nature combines to produce
the conviction that this is strictly a question lying
within the jurisdiction of the superior Courts, at the
highest level of' that jurisdiction. [p. 506) C."

In view of the above discussion, I am of the view that


a Tribunal of limited jurisdiction cannot go into the
question of validity of the law which either created
the Tribunal or conferred jurisdiction on it. However,
the Tribunal of exclusive jurisdiction can go into the
question of validity of any other law on the basis of
which the rights are either asserted or opposed
before it (see- Iqan Ahmed v. Government of
Pakistan, supra). The Tribunal can also examine
whether any such law is in conflict with any of the
fundamental rights guaranteed under the
Constitution of 1973 (see IA. Sberwani v. Government
of Pakistan supra). The case of Hashim Khan and Iqan
Ahmed Khurram (supra), relied by the learned
counsel for the respondents did not lay down the Q
law that a Tribunal of limited jurisdiction is entitled to
determine the validity of Q the very law under which
it is conferred jurisdiction to decide a particular
dispute. The Commission, therefore, had no
jurisdiction to determine the validity of section 8-B of
the Act which conferred jurisdiction on it to decide a
reference made by the Leader of the Parliamentary
Party of a Political Party in the? Assembly against the
disqualification of its elected member of Assembly on
the ground of defection/withdrawal from the party.
The neat-question which arises for determination is
whether this Court while hearing an appeal under
section 8-B of the Act is competent to determine the
vires of section 8-B of the Act. Normally, an appellate
authority acting under a statute exercises the- same
jurisdiction which is conferred on the original Court or
Tribunal under the statute. The appellate Court,
therefore, while hearing a statutory appeal from the
order of original authority essentially exercises a
corrective jurisdiction on question of fact and law
decided by the original authority. This jurisdiction of
the appellate authority, therefore, does not extend to
strike down the very law under which the appellate
jurisdiction is conferred on it. This limitation,
however, is not to be applicable if the appeal under a
statute lies before this Court. The reason for this
exception is obvious as this Court while hearing an
appeal which lies before it under a statute also acts as
the apex Court of the country and against its
pronouncements no further proceedings are
competent before any other Court. Besides, while
hearing an appeal arising under a statute, the
jurisdiction of this Court under the Constitution of
1973 is not taken away or affected. Therefore,
notwithstanding any technical rule of procedure, this
Court possesses the power to issue such directions,
orders or decrees as may be necessary for doing
complete justice in any case or matter pending before
it as provided under Article 187 of the Constitution. I
may also point out that every Judge of the Supreme
Court of Pakistan before he enters upon his office,
takes an oath as set out in Third Schedule of the
Constitution of 1973. The following words in the oath
of the office prescribed for Chief Justice of Pakistan
and Judges of Supreme Court and of the High Courts
are material:---
"That I will preserve, protect and defend the
Constitution of Islamic Republic of Pakistan."

It may be mentioned here that these words are


significantly omitted from the oath prescribed for the.
office of the Chief Election Commissioner, while no
oath is prescribed under the Constitution of 1973 for
the two members of the Commission who are
appointed/nominated by the President of Pakistan.
Therefore, apart from the fact that the Supreme
Court while acting as an apex' Court of the country
would not be subject to any technical rule of
procedure while doing complete justice in a case
before it in 'accordance with the provisions of Article
187 ibid, if a question arises in such proceeding
regarding violation of any of the provisions of the
Constitution it will also be decided by the Judges of
this Court in accordance with the oath taken by them
under the Constitution. In the case of Waris Meah v.
State etc. PLD 1957 SC 157), notwithstanding the fact
that the appellants in that case had pleaded guilty
before the Tribunal constituted under the Foreign
Regulation Act (VII of 1947) and Tribunal had
convicted them on the basis of admission of their
guilt, this Court admitted the appeal against their
conviction and sentence in its ordinary criminal
appellate jurisdiction, to examine the Constitutional
validity of the Act XXXII of 1956 and finally declared
Act XXXII of 1956 violative of Article 5 of the
Constitution of 1956. In the case of Noora and
another (supra), this Court while examining the scope
of its jurisdiction after promulgation of Constitution
of 1956 discarded the practice followed by Privy
Council and Federal Court of Pakistan in criminal
cases and observed as follows:-

"Up to this stage, there can be doubt that the


ultimate Court in this Country did consistently
maintain that it was not an ordinary Court of criminal
appeal, and that since it was exercising the
jurisdiction of the Privy Council, it would follow the
same salutary principles as had been laid down by the
Privy Council in the matter of criminal appeals.

In 1956, when Pakistan shed its Dominion status and


became a Republic, its Constitution set up a Supreme
Court for the Country and by Article 159 gave it the
following appellate jurisdiction in criminal matters:---
"An appeal shall lie to the Supreme Court from any
judgment, final order or sentence of a High Court in
criminal proceedings, if the High Court--

(a) ????????????????????????????has on
appeal reversed an order of acquittal of an accused
person and sentenced him. to death or to
transportation for life; or

(b) ??????????has withdrawn for trial before itself


any case from any Court subordinate to its authority,
and has in such trial convicted the accused person
and sentenced him as aforesaid; or

(c) ????????????????????????????certifies
that the case is a fit one for appeal to the Supreme
Court; or

(d) ????????????????????????????has
imposed any punishment on any person for contempt
of the High Court:
Provided that where a certificate is issued under
paragraph (c) of this Article an appeal shall lie subject
to such rules as may be made in that behalf under
paragraph 3 of the Third Schedule and to such other
rules, not inconsistent with the aforesaid rules, as
may be made in that behalf by the High Court.

In addition to this, it also gave to the Supreme Court


by Article 160 power to grant special leave to appeal
in other cases not covered by Article 159.

From this day onwards, it is suggested, the Supreme


Court did become an appellate Court even in criminal
matters and there was no longer any analogy
between it and the Privy Council or the Federal Court.
It was the highest Court at the apex of the judicial
system in the Country and it was armed with all the
powers of a Court of Appeal without any limitations
whatsoever. Therefore, the decisions of the Privy
Council or the Federal Court circumscribing their own
jurisdiction by self?imposed restrictions necessitated
both by the extraordinary nature of the jurisdiction
exercised by the Privy Council and the special
circumstances under which it functioned hearing
appeals from distant lands inhabited by different
types of people, no longer had any relevance in the
context of its jurisdiction as a Constitutional Court of
Appeal functioning within the Country at the apex of
its judicial system."

In view of the above discussed position, I am inclined


to hold that the court while hearing appeals from the
order of the Commission under section 8-B of the Act
is entitled to examine the fires or Constitutional
validity of section 8-B of the Act. The added reason
for the above view is that the learned counsel for the
appellant himself argued that the question of validity
of section 8-B of the Act can be brought before this
Court finally through proceedings initiated uncles
Article 19 of the Constitution. If the question of
Constitutional validity of section 8-B of the Act can be
agitated before this Court in proceedings arising
under Article 199 of the Constitution, there is no ,
reason why this issue cannot be decided if raised
before this Court in the P appeal filed under section
8-B of the Act. It will be anomalous if this issue is left
undecided in the present proceeding with aright to
the party to agitate the , same in proceedings under
Article 199 of the Constitution of 1 after the decision
of this Court on merit. 1, therefore, hold that
although the present appeals before this Court are
statutory appeals under ion 8-B of the Act, the
question of vies of section 8-B of the Act can also be
gone into and decided in these appeals as this Court
besides being a Constitutional Court bound to decide
all questions relating to violation of Constitutional
provisions, is also the apex Court of the country and
in that capacity it must decide all disputes brought
before it finally in order to do complete justice
between the parties in the case.

Having dealt with the arguments relating try the


scope of the power of Commission to decide the
Constitutional validity of section 8-B of the Act, I now
tale up the objections raised by the learned counsel
for the respondents in support of his contention that
section 8-B of the Act is violative of various provisions
of the Constitution of 1973. The first objection of the
learned counsel for the respondents with regard to
the Constitutional validity of section 8-B of the Act is
rested on its alleged conflict with the provisions of
Articles hand 66 of the Constitution of 1373.
According to Mr. Pirzada, the learned counsel for the
respondents, the disqualifications of a member of
Parliament are stated in sub-clauses (a) to (o) of
clause (1) of Article 63 of the Constitution of 1 . These
disqualifications relate to both stages, namely, before
a person is elected as a member of the Parliament d
also continuing as a member of the Parliament after
his election, Mr. Pirzada contended that defection or
withdrawal from a political party by a member of the
Parliament after his election on the ticket of a polities
party, is not covered under any of the sub-clause-s of
clause (1) of Article 6'3 ibid. According to Mr, Pirzada,
if the Legislature wanted to add defection or
withdrawal of a member of polities patty from its
party after being elected on the ticket of that pate, as
a disqualification from continuing as the member of
the Parliament, it could so? provide only by making
appropriate amendments in the Constitution. Such
disqualification, according to Mr. Pirzada, could not
be prescribed through a sub-Constitutional
legislation. Regarding scope of sub-clause (p) of
clause (1) of Article 63 ibid, Mr. Pirzada contended
that in this sub-clause 'the expression "from being
elected or chosen as a member of the Majlis-e-Shoora
(Parliament)" has been deliberately omitted and
therefore, a legislation under this sub-clause could
only prescribe the disqualification of a member
before his election as the member of the Parliament.
A legislation under sub-clause (p) of Article 63(1) ibid,
according to Mr. Pirzada, which prescribed a
disqualification of an elected member from being the
member of the Parliament was outside the scope of
this clause and hence invalid. Mr. Pirzada also
contended that under clause (1) of Article 66 of the
Constitution of 1973, the right of freedom of speech
and vote in the Parliament by a member is fully
protected and a member cannot be held liable for
such action in any proceeding in any Court. The
learned counsel, accordingly, contended that section
8-B of the Act, which encroaches upon the right of a
member of Parliament to freedom of vote in the
Parliament is liable to be struck down as
unconstitutional.

Mr. Khalid Anwar, the learned counsel for the


appellant on the other hand contended that the
disqualifications of a member of Parliament
enumerated in sub-clauses (a) to (o) of clause (1) of
Article 63 ibid, are not exhaustive. Therefore, the
Legislature both under sub-clause (p) of clause (1) of
Article 63 ibid as well as under its general power to
legislate on the subject of election to the office of
President, National Assembly, Senate, Provincial
Assembly, Chief Election Commissioner and Election
Commission, as provided in item 41 of the Fourth
Schedule to the Constitution of 1973 could
competently promulgate a law prescribing further
disqualifications of a member of the Parliament. It is,
accordingly, contended by Mr. Khalid Anwar that
validity of section 8-B of the Act can be justified both
under sub-clause (p) of clause (1) of Article 63 ibid as
well as under the general power of the Legislature to
enact laws in relation to the matters covered by item
41 of the Federal Legislative List in the Fourth
Schedule of Constitution of 1973.

The Constitution of a country is an origanic document


which reflects the will and aspiration of the nation-
and provides for the system of governance not only in
the present but also for future. The Constitution of
the country is rarely changed and it is intended to
remain operative for centuries. A Q document of such
basic nature, therefore, has to be interpreted in a
manner Q which promotes and preserves its organic
characteristics and does not make it a an
imprisonment of the past alone. In the case Miss
Benazir Bhutto v. Federation of Pakistan etc. PLD
1988 SC 416, this Court while interpreting various
provisions of Constitution of 1973 in the light of the
principles of socio? economic justice enshrined in the
principles of policy within the framework of
fundamental rights, observed as follows:---

"These provisions become in an indirect sense


enforceable by lave and? thus, bring about a
phenomenal change in the idea of co-relation of
Fundamental Rights and a directive principle of State
Policy. If an egalitarian society is to be formed under
the rule of law, then necessarily it has to be by
legislative action in which case it would be
harmonious and fruitful to make an effort to
implement the socio?economic principles enunciated
in the Principles of Policy, within the framework of
the Fundamental Rights, by enlarging the scope and
meaning of liberties, while juridically defining them
and testing the law on its anvil and also, if necessary,
with the co-related provisions of the Objectives
Resolution which is now a substantive part of the
Constitution.

The liberties, in this context, if purposefully defined


will serve to guarantee genuine freedom; freedom
not only from arbitrary restraint of authority, but also
freedom from want, from poverty and destitution
and from ignorance and illiteracy. That this was the
purport of the role of the rule of law which was
affirmed at Lagos in 1961 in the World Peace through
Law Conference:

"Adequate levels of living are essential for full


enjoyment of individual's freedom and rights. What is
the use of freedom of speech to undernolish people
or of the freedom of press to an illiterate population.
The rule of law must make for the establishing of
social, economic and cultural conditions which
promote men to live in dignity and to live in dignity
and to live with aspirations."

The Court will be in a position, if the procedure is


flexible, to extend the benefits of socio-economic
change through this medium of interpretation to all
sections of the citizens.

This approach is in tune with the era of progress and


is meant to establish that the Constitution is not
merely an imprisonment of the past, but is also alive
to the unfolding of the future. It would thus, be futile
to insist on ceremonious interpretative approach to
Constitutional interpretations as hitherto undertaken
which only served to limit the controversies between
the State and the individual without extending the
benefits of the liberties and the Principles of Policy to
all the segments of the population."

The above observations were quoted with approval


by Mr. Justice Nasim Hasan Shah, C.J. (as he then
was) in the case of Mian Muhammad Nawaz Sharif
and others v. President of Pakistan and others PLD
1993 SC 473. Almost all the lading Authors on
Constitutional Laws have advocated progressive
interpretation as a rule for interpreting the
Constitutional provisions. Peter W. Hogg, Professor
Law, Toronto, in his book "Constitutional Law of
Canada", Third Edition (1992), keeping in view the
changes which took place in Canada since
confirmation in 1867 through expansion of its
territories, population and various socio-economic
developments without consequent changes in the
Constitution commented as follows:---

"The idea underlying the doctrine of progressive


interpretation is that the Constitution Ad, 1867,
although undeniably a statute, is not a statute like
any other: it is a "constituent" or "organic" statute,
which has to provide the basis for the entire
Government of a nation over a long period of time.
An inflexible interpretation, rooted in the past, would
only serve to withhold necessary powers from the
Parliament or Legislatures. It must be remembered
too that the Constitution Act, 1867, like other federal
constitutions, differs from an ordinary statute in that
it cannot easily be amended when it becomes out of
date, so that its adaptation to changing conditions
must fall to a large extent upon the Courts."

"In Canada, it is well established that the language of


the Constitution Act, 1867 is not to be forzen in the
sense in which it would have been understood in
1867. Rather, the language is to be given a
"progressive interpretation" so that it is continuously
adapted to new conditions and new ideas. The
principle of progressive interpretation is flatly
inconsistent with organalism, the whole point of
which is to deny that the Courts have the power to
adapt the Constitution to new conditions and new
ideas. It would be wrong to conclude that. the
principle of progressive interpretation is necessarily
inconsistent with the intentions of the framers. What
originalism ignores is the possibility that the framers
were content to leave the detailed application of the
Constitution to the Courts of the future and were
content that the process of adjudication would apply
the text in ways unanticipated at the time of drafting.

With respect to the Constitution Act, 1867, it is quite


likely that the interpretative intention of the framers
was something like the doctrine of progressive
interpretation. They knew that their handiwork would
have to adapt to changes in society, and yet they did
not seem to contemplate amendment as a frequent
method of adaptation, because they made no
provision for amendment of the Constitutional text,
and amendment was in fact only possible by the
agency of the Imperial Parliament of, Great Britain.
With respect to the Constitution Act, 1982, the
proceedings of the Special Joint Committee of the
Senate and House of Commons on the Constitution of
Canada indicate rather clearly that the civil servants
who drafted the text and the Ministers and members
of Parliament who adapted it assumed that the
Courts would not be bound by the views of the
framers, and would interpret the text in ways that
could not be predicted with certainty."
?????????????????
Brest in his book "Process of Constitutional Decision
Making" quoted the following rule of interpretation
of statutory and Constitutional provisions
propounded by Justice Mekenna:---

"Legislation, both statutory and Constitutional, is


enacted, it is true, from an experience of evils, but its
general language should not,? therefore, be
necessarily confined to the form that evil had thereto
fore taken. Time works changes bring into existence
new conditions and purposes. Therefore a principle to
be vital must be capable of wider application than the
mischief which gave it birth. This is peculiarly true of
Constitutions. They are not ephemeral enactments,
designed to meet passing occasions. The are to use
the words of? Chief Justice Marshall, "designed to
approach immortality as nearly as human institutions
can approach it". The future is their care and
provision for events of good and bad tendencies of
which no prophet can be made.. In the application of
a Constitution, therefore, our contemplation cannot
be only of what' has been but of what may be. Under
any other rule a Constitution would indeed be as easy
of application as it would be deficient in efficacy and
power. Its general principles would have little value
and be converted by precedent into impotent and
lifeless formulas. Rights declared in words might be
lost in reality. And this has been recognized. The
meaning and vitality of the Constitution have
developed against narrow and restrictive
construction." ?????????????????The above rule of
interpretation of constitutional provisions laid down
by Justice Mekenna has been followed consistently by
Supreme Court of United States of America. In Corpus
Juris Secundum, Volume 16, commenting on the
maxim "expressio unis est exclusio alterius," the
following observation has been made:--

"Applying the maxim, "expressio unis est exclusio


alterius," the enumeration of certain specified things
in a Constitutional provision will usually be construed
to exclude all things not thus enumerated. This is a
rule to be used merely in ascertaining the true
meaning, and it is not a rigid rule of universal
application, and will yield where an intention to the
contrary is indicated or expressed. The rule should
never be applied to obscure the meaning or thwart
the purpose of- a Constitutional provision. The maxim
should be applied with caution td provisions of
Constitutions relating to the legislative branch of the
Government, since it cannot be made to restrict the
plenary power of the Legislature or to control an
express provision of the Constitution;"

In the case Abdul Aziz and others v. Province of West


Pakistan PLD 1958 SC (Pak.) 499, Cornelius, J. (as he
then was) while stating a basic principle of
interpretation of Constitutional provisions observed
as follows:--

"The correct view is that a Constitutional provision


must be ?????????????????interpreted, as befits an
organic instrument, in the widest possible sense. It is
not permissible to place narrow constructions upon
provisions contained in a constitution, if the result be
that thereby the validity of a statute is prejudiced. In
all circumstances, the full scope and extent of the
Constitutional provision is capable of a construction
which is conformable to the true meaning of the
relevant Constitutional provision, then that
construction should be accepted. It is possible that
the learned Judges meant to convey this impression
by words which they have employed, and we have
only found it necessary to comment upon those
words to ensure that they should not be interpreted
as allowing Courts to adapt the Constitution for the
purpose of saving a statute when in fact the
requirement is that all statutes and more generally,
all sub-Constitutional laws should conform to the
Constitution."
In the case Government of Balochistan v. Azizufah
Memon PLD 1993 SC 341, the rule of interpretation of
Constitutional provisions was stated as follows:---

"The interpretation of Constitution attracts most of


the principles employed in interpreting the Statutes,
but care has to be taken that it is not restrictive,
pedantic or limited. Unlike other enactments the
Constitution is a living document which portrays the
aspirations and genius of the people and aims at
creating progress, peace, welfare and amity among
the citizens and the nations abroad -It 1S the basic
structure on which the entire edifice is built and
therefore it has to be interpreted in a manner to keep
it alive and blossom in every atmosphere and in every
situation."

?????????????????In the case of Pakistan


Industrial Development Corporation v. Pakistan
through. Secretary Ministry, of Finance (1992 SCMR
891), this Court while reiterating the rules of
interpretation of Constitution, laid down (1) In Special
Reference No.1 of 1957 PLD 1957 SC (Pak.) 219, (2)
The State v. Ziaur Rehman and others PLD 1973 SC
49; (3) Federation of Pakistan v. Saeed Ahmed Khan
and others PLD 1974 SC 151, and (4) Shireen Munir
and others v. Government of Punjab (PLD 11990 SC
295) made the following observations with regard to
principles for interpretation of the Constitutional
provisions and specially the items mentioned in the
Legislative Lists of the schedule to the Constitution:---
?????????????????????,

"The Constitution provides governance to the


country, confers rights privileges and liabilities on the
citizens and also controls the working in all fields of
life. It is a living document and is to be interpreted in
a widest possible manner to ensure continuity and
balance in the several Constituents and organs of the
State. The item in the list in respect of which power of
taxation can be exercised should not be interpreted
in a restricted and pedantic manner. In this regard
Mr. A.A. Fazeel, the learned A.S.C., has pointed out
that the appellant's counsel had referred to United
Provinces v. Mst. Atiqa Begum and others AIR 1941
Federal Court 16, where it was observed that:---
`None of the items in the list is to be read in a narrow
or restricted sense, and that each general word
should be held to extend to all ancillary or subsidiary
matters which can fairly and reasonably be said to be
comprehended in it'."

From the preceding discussion, it follows that while


interpreting a Constitutional provision a narrower
construction is to be avoided and a liberal and
progressive interpretation is to be preferred and
specially while construing F the entries in the
legislative lists of the Constitution, which relate to the
power F of Legislature to enact laws, widest possible
meaning is to be given to every entry in the
Legislative lists of the Constitution. The Courts also
lean to uphold F the constitutionality of an Act of
legislature and would be loath in striking it down as
unconstitutional unless it comes in conflict with some
express provision of the Constitution.

Mr. Pirzada, the learned counsel for the respondents,


contended that item No.41 of the Legislative List in
the Fourth Schedule has to be read with reference to
Article 70(4) of the Constitution of 1973 which clearly
states that the Federal Legislative List and Concurrent
List in the Fourth Schedule in this Article and the
succeeding provisions of the Constitution mean the
Federal Legislative list and the Concurrent List
respectively. According to Mr. Pirzada, the provision
of Article 70(4) ibid leaves no doubt that item No.41
of the Legislative List has no reference to any Article
of the Constitution of 1973 preceding Article 70 of
the-Constitution and therefore, any legislation under
item No.41 of the Federal Legislative List made with
reference to an Article of Constitution of 1973 which
precedes Article 70 ibid will be invalid. I find it difficult
to assimilate the argument of learned counsel. Article
70 ibid only sets out the legislative procedure in
respect of matters specified in the Federal. Legislative
List and Concurrent Legislative List of the Constitution
of 1973. _?Article 70 ibid, therefore, cannot be read
as a provision restricting the" legislative power of the
Parliament. The items in Legislative List of the !
Constitution are to be liberally construed and given
the widest possible meaning. Item No.41 of the
Federal Legislative List empowers the Legislature to
make laws relating to election to the office of the
President, National Assembly, Senate and Provincial
Assemblies, the Chief Election Commissioner, and the
Election Commission. The legislative field under item
No.41 of the Federal Legislative List of the
Constitution of 1973 is wide enough to admit within
its scope a legislation prescribing disqualification of a
member of Assembly in addition to those already
mentioned in Article 63 of the Constitution of 1973.
The expression "Election to National Assembly,
Senate and Provincial Assemblies" used in item No.41
of the Federal Legislative List? of the Constitution of
1973 are of the widest import and all embracing and
would cover any subject concerning the election to
National Assembly, Senate and Provincial Assemblies.
The power of the Legislature, to enact laws relating to
items mentioned in the Legislative Lists of the
Schedule to the Constitution??? of 1973, are
unfettered and unrestricted unless some provision in
the Constitution specifically curtailed this. power. I
have not been pointed out any provision in the
Constitution of 1973, by the learned counsel for the
respondents which restricted or curtailed the power
of Legislature to enact a law-making defection or
withdrawal of a member of Parliament belonging to a
political party from its party after being elected as the
member of Parliament on the ticket of that political
party, as a disqualification from continuing as such
member. Apart from it, Article 63 of the Constitution
of' 1973 which lays down the disqualifications of a
member of Parliament reads as follows:---

"63.--(1) A person shall be disqualified from being


elected or chosen as, and from being, a member of
the Majjis-e-Shoora (Parliament), if--

(a) ????????????????????????????he is of
unsound mind and has been so declared by a
competent Court; or
(b) ????????????????????????????he is an
undischarged insolvent; or
(c) ????????????????????????????he ceases to
be a citizen of Pakistan, or acquires the citizenship of
a foreign State; or
(d) ????????????????????????????he holds an
office of profit in the service of Pakistan other than en
office declared by law not to disqualify its holder; or
(e) ??????????he is in the service of any statutory
body of any body which is owned or controlled by the
Government or in which the Government has a
controlling share or interest; or
(f) ?????????????????????????????being a
citizen of Pakistan by virtue of section 14B of the
Pakistan? Citizenship Act, 1951(11 of 1951), he is for
the time being disqualified under any law in force in
Azad Jammu and Kashmir from being elected as a
member of the Legislative Assembly of Azad Jammu
and Kashmir; or
(g) ????????????????????????????he is
propagating any opinion, or acting in any manner,
prejudicial to? the Ideology of Pakistan, or the
sovereignty, integrity of security of
????????Pakistan, or morality, or the
maintenance of public order, or the integrity or
independence of the judiciary of Pakistan, or which
defames or brings into ridicule the judiciary or the
Armed Forces of Pakistan; or
he has been, on conviction for any offence which in
the opinion of the Chief Election Commissioner
involves moral turpitude, sentenced to imprisonment
for a term of not less than two years, unless a period
of five years has elapsed since his" release; or
he has been dismissed from the service of Pakistan on
the ground of misconduct, unless a period of five
years has elapsed since his dismissal; or
he has been removed or compulsorily retired from
the service of Pakistan on the ground of misconduct
unlesss a period of three years has elapsed since his
removal or compulsory retirement; or
(k) ??????????he has been in the service of Pakistan
or of any statutory body or any body which is owned
or controlled by the Government or in which the
Government has a controlling share of interest,
unless a period of two years has elapsed since he
ceased to be such service; or
(1) ??????????he fond guilty of a corrupt or illegal
practice under any law for the time being , force,
unless a period of five years has been elapsed from
the date on which that order takes effect; or
(m) he has been convicted under section's of the
Political Parties Act, 1962 (111 of 1962), unless a
period of five years leas elapsed from the date of
such conviction; or
(n) ??????????he, whether by himself or by any
person or body of persons in trust for him or for his
benefit or on his account or as a member of a Hindu
undivided family, has any share or interest in a
contract, not being a contract between a cooperative
society and Government, for the supply of goods to,
or for the execution of any contract or for the
performance of any service undertaken by,
Government: Provided that the disqualification under
this paragraph shall not apply to a person---

(i) ????????????where the share or interest in the


contract devolves east hind by inheritance or
succession or as 'a legatee, executor or administrator,
until the expiration of ' months after it has so
devolved on him;
(ii) ??????????where the contract has been entered
into by or on behalf of a public? company as defined
in the Companies Ordinance, 1984 (XLV11 of 1,84), of
which he is a shareholder but is not a director holding
an office of profit under the company, or
(iii) ?????????where he is a member of a Hindu
undivided family and the contract has been entered
into by any other member of that family in the course
of carrying on a separate business in which he has no
share or interest; or
Explanation.--- In this Article "goods" does not include
agricultural produce or commodity grown or
produced by him or such goods as he is, under any
directive of Government or any law for the time being
in force, under a duty or obligation to supply--

(o) ????????????????????????????he holds


any office of profit in the service of Pakistan other
than the following offices, namely:---
(i) ??????????????????????????????an office
which is not whole time office remunerated either by
salary or by fee;
(ii) ????????????????????????????the office of
Lumbardar, whether called by this or any other title;
(iii) ????????? the Qaumi Razakars;
(iv) ?????????any office the holder whereof, by
virtue of such office, is liable to be called up for.
military training or military service under any law
providing for the Constitution or raising of a Force; or

(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.
(2) ??????????if any question arises whether a
member of the Majhs-e-Shoora (Parliament) has
become disqualified from being. a member, the
Speaker or, as the case may be, the Chairman shall
refer the question to the Chief Election Commissioner
and, if the Chief Election Commissioner is of the
opinion that the member has become disqualified, he
shall cease to be a member and his seat shall become
vacant."

A careful reading of the above provisions would show


that the opening clause of Article 63(1) ibid controls
all its sub-clauses. The learned counsel for the
respondents, the Deputy Attorney-General and the
Advocate-Generals of Punjab, Sindh and N.-W.F.P.
though did not dispute that sub-clauses (a) to (q) T of
Article 63(1) ibid are controlled by its opening clause,
but contended that T sub-clause (p) should be read as
an independent clause as the words "and from being
a member of Majlis-e-Shoora" which are used in the
opening clause of Article 63(1) ibid are significantly
omitted in this sub-clause, meaning thereby that the
Legislature under this sub-clause could pass a law
prescribing the disqualification of a person before his
election ah member of Parliament or a Provincial
Assembly. There is no justification either under any
rule of grammatical construction or any known
principle of interpretation of a Constitutional
document to read sub-clause (p) of Article 63(1) ibid,
in the manner suggested by the learned counsel for
the respondents and the Government. Article 63(1)
ibid relates to-the disqualifications of a member of
Parliament. While sub-clauses (a) to (o) of Article
63(1) ibid, spell out the disqualifications, sub-clause
(p) authorizes the Legislature to prescribe further
disqualifications of the members of Parliament and a
Provincial Assembly, through a legislation. The
subject-matter of all the sub-clauses of Article 63(1) j
ibid, is the same, namely; disqualifications of the
member of Parliament and therefore, there is no
justification to read only sub-clause (p) differently
from sub-clauses (a) to (o) of Article 63(1) ibid. I am,
therefore, of the view that sub-clause (p) ibid, cannot
be read independently and has to be read alongwith
the opening clause of Article 63(1) ibid which controls
all its sub-clauses. Therefore, a legislation which
prescribes post-election disqualifications of a
member of Parliament or Assembly cannot be struck
down as ultra vires of the I provisions of sub-clause.
(p) of Article 63(1) ibid. I accordingly, hold that
section 8-B of the Act is a valid law and it is not ultra
vires of the provisions o= Article 63(1)(p) ibid or item
No.41 of the Federal Legislative List in the Fourth
Schedule of the Constitution of 1973. The contention
of Mr. Pirzada that the provision regarding
disqualification of the members of the Assemblies on
the ground of defection from their political party has
been introduced in the Indian Constitution by making
appropriate amendments in the relevant provisions
of the Indian Constitution and therefore, a similar
amendment in the Constitution of 1973 would confer
legitimacy to the law of defection, does not appear to
be correct. If the Legislature was competent under
the Constitution of 1973 to promulgate a law-making
defection/withdrawal by the member of Assembly
from his political party, a disqualification to continue
as such member, the absence of a Constitutional
amendment in this behalf in the Constitution of 1973
was of no significance. A law validly promulgated by
the Legislature carries the same force and effect
which a Constitutional provision possesses. As I have
reached the conclusion that section 8-B of the Act is a
valid law, the absence of similar provision in the
Constitution of 1973 had no effect on its validity.

The next objection to the validity of section 8-B of the


Act rests on its alleged conflict with Article 66(1) of
the Constitution of 1973 which reads as under:--

"66.--(1) Subject to the Constitution and to the rules


of procedure of Majlis-e-Shoora (Parliament), there
shall be freedom of speech in Majlis-e-Shoora
(Parliament) and no member shall be liable to any
proceedings in any Court in respect of anything said
or any vote given by him in Majlis-e-Shoora
(Parliament), and no person shall be so liable in
respect of the publication by or under the authority
of Majlis? e-Shoora (Parliament) of any report, paper,
votes or proceedings."

Mr. Sharifuddin? Pirzada, the learned counsel for the


respondents contended that under the above
provision of the Constitution of 1973, a member of
Parliament enjoys complete freedom of speech and
right of vote on the floor of Parliament and he cannot
be proceeded against in any Court in respect of
anything said or any vote. given, by him in the
Parliament. The learned counsel contended that
section 8-B of the Act places a fetter both on the
freedom of speech and right of vote of a member of
Parliament belonging to a political party and
therefore, it is liable to be struck down as
unconstitutional. The argument of the learned
counsel for the respondents does not appear to be
correct. Section 8-B of the Act does not curtail the
freedom of speech or right i of vote of a member of
the Parliament in any manner. Section 8-E of the Act
only provides that the defection or. withdrawal of a
member of an Assembly from the political party after
being elected on the ticket of that party renders him
disqualified from being the member of the Assembly
from the date of defection or withdrawal for the
unexpired period of his term as such member U It is,
therefore, quite clear that the disqualification of a
member of Assembly or Parliament under section 8-B
ibid arises not on account of his freedom of U speech
or right of vote in the Parliament but on account of
his act of withdrawal or defection from the political
party on which ticket he was elected as the member
of the Assembly or the Parliament. Defection is a vice,
is not open to any two opinions. In all democratic
parliamentary systems, which function on the basis of
political parties, the act of defection by members of I
from his parliamentary party is looked upon with
condemnation. It is considered as an evil which
renders the functioning of a parliamentary system a
farce. In the manifestos issued by the Pakistan
People's Party (P.P.P.) and P.M.L.(N), respectively, on
the eve of General Election of 1993, the following
policy declarations were made. by them to deal with
the evil of floor-crossing or defection by the members
of Parliament:---
P P.P. Manifesto:

"POLITICAL PARTIES ACT

POLITICAL PARTIES ACT will be made effective to


ensure an end to floor-crossing and horse-trading so
that, once elections are over, a letter from the Leader
of the Parliamentary Party will automatically
disqualify a member."

P M.L. (N) Manifesto: '


"To firmly establish democratic institutions and
healthy traditions so that all future changes of
Government take place only through periodic
elections, floor-crossings by elected representatives
are prohibited and the elected opposition is given full
recognition to play its due role in the National
Parliament and the Provincial Assemblies. The
essence of democracy lies in political pluralism."

It is, therefore, quite clear that both the major


political parties have similar view on the question of
controlling and discouraging the defection or floor
?crossing by the members of the Assemblies.

Mr. Sharifuddin Pirzada, the learned counsel for the


respondents quoted a passage from the book titled
"Parliament" by Sir Ivor Jennings (Second Edition) in
an attempt to show that even in English Parliament,
which is considered to be the mother-Parliament of
all the parliamentary systems, the act of defection by
the members of Parliament is not controlled by
disqualifying them under any legislative measure but
such acts are sought to be curbed through the party
whip system, which the learned counsel described as
the remote control system, and 'by denying a party
ticket to defecting member in the next general
election. The substance of the argument of Mr.
Pirzada is that, however, hated the act of defection
may be, the decision on the act of defection must be
left to the electorate which is the final arbiter in this
regard. The passage relied by Mr. Pirzada from
Jennings' book "Parliament" reads as follows:---

"More serious than absence is the offence of voting in


the wrong lobby. Absence counts one vote, while
voting with the other side counts two. Moreover, a
Government, particularly (though an Opposition
equally dislikes to find its men voting with the
Government), is weakened in public opinion if its
proposals cannot secure the support of its own
members. Here again the velvet glove is more
effective than the mailed fist. If a whip finds that a
member dissents strongly, he promises to draw the
Prime Minister's attention to the complainant,
suggests that perhaps some- modification may be
agreed or some inquiry made to satisfy the member's
point of view, which he recongises to be one of great
importance; and in the last resort he can always point
out that the member could make his protest effective
by abstaining from voting on the question. The mailed
fist is seldom, if ever, employed. The efficient whip, to
change the metaphor, rides his horse free rein, and
uses his whip only to keep off the flies. Of one famous
whip, the Master of Elibank, it was said.

Persuasion tips his tongue whenever he talks. In the


debate which proceeded the setting up of the Select
Committee of Procedure in 1913 there was general
agreement that reprimands were rare. Mr. Arthur
Posonby, who was by no means an orthodox party
voter, said that he had frequently voted against the
Government, and only once had any pressure or
influence been brought to bear upon him. Then the
Chief whip sent him a note which began: `May I say
with what pain...: He had then been in the House for
ten days only; and perhaps the whip thought that as a
new boy he ought to be informed of the conventions
of the school.

Mr. Spencer Leigh Hughes agreed with him:


I have voted against the Government sometimes, and
I have never been reproached by the whips. If I were I
should retort. Indeed, the only official
communications I have had from the whips have
been when they have approached me with great
deference, almost. with obsequiousness, asking the
to go and speak at some by election in the country. So
that the tyranny of the whips, so far as I am
concerned, is a fiction altogether, and I do not believe
it exists.

The evidence given to the Select Committee was to


much the same effect. Mr. Gulland, a Liberal whip,
stated that he had never heard of a member being
spoken? if he voted against the Government, though
he thought that the practice might differ in the
Conservative Party. Mr. RA. Sanders, a Conservative
whip, said that if a whip saw a member moving
towards the wrong lobby he would speak to him; if it
was found that he was constantly voting against his
party his local association would be communicated
with; but no action would be taken in respect of
estate instance. Mr. James Hope said that l. had
heard of a member who had received a letter from
his chief whip beginning: `It is with the greatest pain I
note your vote last night. What usually happens, in
fact, is that the local association or party asks the
member to explain his conduct, and decides to seek a
new candidate if his answers are not satisfactory. In
1914, for instance, Mr. Martin of St Pancras twice
voted against the Government, and his Radical
association decided to seek a new candidate.
Similarly, Mr. Mason of Coventry voted against the
Government and his association : refused to,
recognise him as .a candidate. Since 1914, however,
the Liberal Party has become more `liberal' in its
attitude to cross-voting. The Labour Party has the
strictest of machines. The party Constitution declares
that `any candidate who after election, fails to accept
or act in harmony with the Standing Order of the
Parliamentary Labour Party shall be considered to
have violated the terms of this Constitution'.

These Standing Orders state: `The privilege of


membership of the Parliamentary Labour Party
involves the acceptance of the decisions of the party
meeting. The party recognises the right of the
individual member to abstain from voting on matters
of deeply held personal and conscientious conviction.'
They added that the whip may be withdrawn `on
account of things said or done' by members of the
Party. Further, `serious or persistent breaches of
party discipline' may be reported to the National
Executive Committee of the .Labour Party, which has
power to deprive a member of his party endorsement
at the next election, and this means in practice his
almost certain defeat if he chooses to defy the party
and stand as an independent.

The Standing Orders were adopted while the Labour


Party was in office in 1929-31, in order to meet the
difficulties caused by conflict between the Labour
Government and the Independent Labour Party,
whose members were, as members of the Labour
Party, members of the Parliamentary Labour Party
but acted as a Left-wing pressure group. They
remained in operation. while the Labour Party was in
opposition from 1931 to 1940. They were redrafted
when the Labour Government took office in 1945, but
were suspended until the party was again in
opposition in 1952, when they were reintroduced in
their present form. This reintroduction was due to the
fact that fifty-five members of the party, led by Mr.
Aneurin Bevan, disobeyed the Labour Party whip to
vote for the party's amendment, expressing?
approval of the Government's White Paper on
Defence. The decision was taken at a meeting of the
Parliamentary Labour Party on 11th March, 1952,
when the following resolution was passed:"

The above-quoted passages do show that persuasive


method used to be adopted against the defecting
members through party whip but nowhere in the
above comments, defection was accepted as a
legitimate part of parliamentary democracy. It may
be true that there is no legislation in field in England
to deal with the vice of defection by the members of
Parliament but this phenomena can neither justify
the act of defection nor it can be pleaded as a
circumstance in support of the argument that no
legislative measure was necessary to curb this
practice. When an evil begins the legislation must also
begin to suppress the evil. However, so far this
country is concerned, after the pronouncement of
this Court in the case Khawaja Ahmed Tariq Rahim
(supra), that the act of defection by a member of
Parliament amounts to breach of confidence reposed
in him by the electorate and that it destroys his
representative character and the normative moorings
of the Constitution of an Islamic State, it is not
possible to accept the argument that a legislation to
curb the practice of defection or floor-crossing is the
answer to control the vice V of defection, keeping in
view the parliamentary practices followed in England.
I V am, therefore, of the view that section 8-B of the
Act neither contravenes nor V comes in conflict with
the provisions of Article 66 of the Constitution of
1973.

The next contention of Mr. Sharifuddin Pirzada is,


that the provisions of section 8-B of the Act are in
conflict with Article 17 of the Constitution of 1973
which guarantees the rights to form an association or
to be a member of a political party. According to Mr.-
Pirzada, the right to be a member of the political
party includes in it the right of that member to
withdraw or dis?associate from that party as held by
this Court in the case of Miss Benazir Bhutto (supra).
Mr. Pirzada contended that by providing in section 8-
B of the Act that if a person defects or withdraws
from the political party on which ticket he has been
elected, he is liable to be disqualified from being the
member of the Parliament for his remaining term as
such member, the right of such member to
disassociate from that party has been infringed. I am
unable to' accept the argument of the learned
counsel. Right to continue as a member of Parliament
is quite distinct from the right to be a member of a
political party. For being a member of Parliament, it is
not at all necessary to be a member of political party
as well. Similalry, to be a member of a political party,
a person is not required to be a member of the
Assembly or Parliament. There is nothing in section 8-
B of the Act which prohibits the right of disassociation
of a member of the political party from that party.
The fact that on account of defection or' withdrawal
from the political party, a member of assembly or
Parliament elected on the ticket of that party, stands
disqualified from being such member for the
unexpired term of the membership of Assembly or
Parliament, cannot be read as a clog on the right of a
member of? political party to disassociate from that
party.

?????????????????The learned Advocates-


General, Punjab, Sindh and N: W.F.P. also contended
that in view of clause (2) of Article 17 ibid. only those
disqualifications of the members of Parliament could
be prescribed through legislation which are in the
interest of sovereignty or integrity of Pakistan "and as
such, the disqualification of a member of Parliament
or Assembly on account of his act of defection" or
Withdrawal from a political party provided in section
8-B of the Act is clearly in conflict with Article 17(2) of
the Constitution of 1973. The argument has no merit.
Article 17(2) ibid deals with the right to form a
political party and to be its member subject to any
reasonable restriction imposed in the interest of
sovereignty or integrity , of Pakistan. This provision
does not deal with the qualifications or
disqualifications of a member of Parliament or
Assembly which are dealt with under different
provisions of the Constitution of 1973. The subject
and scope of Article 17(2) ibid and Articles 62, 63 and
item No.41 of the Federal Legislative List in the 4th
Schedule of the Constitution of 1973 being different,
it is not permissible to read the restriction in Article
17(2) ibid., while dealing with the disqualification of a
member of Parliament and the Assembly. The
restriction in Article 17(2) of the Constitution of 1973,
has nothing to do that the disqualification of a
member of the Parliament or the Assembly. I am,
therefore, of the view that section 8-B of the Act does
not come in conflict with Article 17 of the
Constitution of 1973. It is also contended by Mr.
Pirzada that section 8-B of the Act is also in conflict
with Article 19 of the Constitution of 1973, which
guaranteed the freedom of speech of individuals. I am
unable to understand how the provisions of section 8-
B of the Act come in conflict with the right of freedom
of speech guaranteed under Article 19 of the
Constitution of 1973. Besides the fact that right of
freedom of speech guaranteed under Article 19 ibid.
is not unfettered and unqualified and is subject to the
restrictions mentioned in that Article which can be
imposed through legislative measure, the provisions
of section 8-B of the Act neither directly nor indirectly
impose any restriction on the right of freedom .of
expression of the members of the political party. The
last objection of the respondents to the validity of
section 8-B of the Act is based on its alleged conflict
with Article 2-A of the Constitution of 1973 and being
opposed? the Injunctions of Islam. Mr. Pirzada, the
learned counsel for the respondents contended that
under Islamic system of governance, a person has to
act according to his conscience and if he is asked to
give his advice he has to tender the same honestly,
independently and according to the dictates of his
conscience. According to Mr. Pirzada by providing in
section 8-B of the Act that an elected member of
Parliament belonging to a political party on
withdrawal or defection from his party loses his seat
in the Assembly or Parliament, the right of honest
dissent of such member has been taken away which is
opposed to Islamic concept of polity. The learned
counsel supported his contention by reading out
passages from Ansari Commission Report on `Form of
Government' and the following extract from a lecture
by late Justice Hamoodur Rahman, the former Chief
Justice of Pakistan:---

"So much for Executive. Now coming to. the


Legislature, I am of the opinion, that the Majlis-e-
Shoora can easily be expanded and adapted to
become a modern Legislature. Of course it will have
no power to legislate in a field or in respect of a
subject already occupied by or provided for in the
Qur'an and Sunnah but should be capable of
exercising the powers of Umaa and Itehad. It is,
therefore, necessary that they should also be persons
possessing special qualifications needed for this task
and these should also be carefully laid down in the
Constitution. Once elected they should function as
independent members and not be tied to any political
party or its programme. They should vote on the
questions laid before them on the basis of their own
honest conviction. No other consideration ought to
be allowed to prevail:"

The passage from Ansari Commission's Report on


Form of Government relied by the learned counsel for
the respondents is part of the opinion of late
Maulana Zafar Ahmed Ansari, who was of the view
that the existence of political parties and the western
style parliamentary democracy are opposed to the
concept of governance? in Islam. The following
extracts from the opinion of Maulana Ansari bring out
the substance of his views on the subject:---

"5. ??????????Political parties tend to provoke and


inflame the people to an extent that the country is
dangerously polarized into fighting camps. What
happened in the case of East Pakistan in 1970-71, and
in West Pakistan in 1977 is well known. During the
election campaigns so much bitterness was generated
that it appeared as if people were not brother
Muslims in a Muslim State but combatants of two
opposing armies thirsting for each others blood. This
state of affairs is obviously not in consonance with
the Islamic Injunction that Muslims are one Ummah
and constitute a wall of molten lead.

6 ??????????????Now since there is general


agreement about the objectives of an Islamic state, as
also the aims which the country and the nation have
to achieve, there is no justification for the formation
of separate political parties to wrangle for political
power. If minor differences of opinion are to be
considered a basis for organising parties the result is
bound to push the common aims and objects to the
background, thus magnifying the minor differences of
opinion into national problems not amenable to easy
solution. Another outcome would be that major
political, economic and foreign policy problems will
be left to the discretion and decision of the
bureaucracy thus leaving the elected representative
leadership powerless in national affairs and at the
mercy of the bureaucrats. In the West where secular
systems of Government are in force and the
underlying philosophy of Government is that of the
sovereignty of the people, there is room for
differences regarding the basic objectives of State
Policy. Since new theories are propounded there
from time to time and new moral standards appear
on the scene, it is natural for people to form
themselves into political groupings with different
ideological stances and try to canvass public support.
If today the people there wish to impose prohibition
or ban certain immoral practices they can do so.
However, if tomorrow some party stands in favour
of? legalizing the use of liquor, and if it succeeds in
swinging the public opinion in the opposite direction,
all that had been prohibited can be legalized.
Obviously an Islamic State cannot admit of such basic
ideological shifts."

The passage from Ansari Commission Report relied by


the learned counsel for the respondents, therefore,
should not be read out of its context. Similarly, the
extract from the lecture of late Chief Justice
Hamoodur Rahman, referred to by the learned
counsel for the respondents would show that the
learned Chief Justice had in mind a Majlis-e-Shoora
which consisted of independent elected
representatives who are not bound by the discipline
of a political party. In any case, the passage relied by
the learned counsel for the respondents from the
speech of late Chief Justice can hardly be cited in
justification of an act of defection on Islamic
principles where such an act is considered
condemnable even on purely secular standards. I
have no doubt that an honest and principled dissent
or disagreement on an important issue by a member
of political party can hardly be treated as an act of
defection. `Defection' in its concept and political
parlance refers to an act of political opportunism to
obtain immoral gains and worldly advantages through
exploitative approach of one's representation and
political status. Such acts cannot be justified on any
known principle of Islamic polity. Islam ordains the
believers to stand- by their promises and fulfil their
commitments. In Verse 91 of (Sura Nasil ) God has
ordained:---
The translation of the verse is as follows:---

"91. Fulfil the covenant of Allah when ye have


covenanted, and break not your oaths after the
asseveration of them, and after ye have made Allah
surety over you. Lo: Allah knoweth what ye do."

Similarly, in verse No. 77 of (Sura All e Imran ) God


has ordained as follows:

He, who purchase a small gain at the cost of Allah's


covenant and their oaths, they have no portion in the
Hereafter. Allah will neither speak to them nor look
upon them on the Day of Resurrection, nor will He
make them grow. Theirs will be a painful doom."

In Verse No. 34 of ( Sura Bane Israel ), the direction to


faithfuls to fulfil their commitments is as follows:---

" 71 and keep the covenant.


Lo: of the covenant it will be asked."
In verse No.27 of (Sura Infaal ), the commandment of
God to discharge the trust is in these words:---

"27. O ye who believe! Betray not Allah and His


Messenger, nor knowingly betray your trusts."
Similarly in `Mishkhat-ul-Masabih, various sayings of
Holy Prophet (peace be upon him), have been quoted
as under:---

, "Abu Hurairah reported that the Messenger of Allah


said: The signs of a hypocrite are three. When he
talks, he speaks falsehood; and when he promises, he
breaks, and who he is entrusted, commits treachery,
Agreed upon it. (Add Muslim added: Even though he
keeps fasts, prays and thinks that he is a Muslim.)

51. Abdullah-b-Aamr reported that the Messenger of


Allah said: Whoso? has got four things in him is a true
hypocrite, and whoso has got a?? habit therefrom in
him has got in him a habit of hypocrisy till he gives it
up; when he is trusted, he is unfaithful; and when he
speaks, he speaks falsehood; and when he makes
promise, he proves ireachirous, and when he
quarrels, he commits sin--- Agreed.
???????????????????????????????????
152. Ibn Omar reported that the Messenger of Allah
said: The parable of a ?????????????????hypocrite
is a goat roaming between two goats going once unto
this and once unto that."

???????????????????????????????????????????
??????????The narration of above Islamic Principles
make it clear that Islam ??????????requires :he
believers to carry out their promises and
commitments whenever made (except where such
promises are made against any express Injunction of?
Islam), and refrain from committing the breach of any
trust. A person who seeks election as a candidate of a
political party on its ticket, holds out to his party and
the electorate his abiding faith on the manifesto of
this party. His defection from the party after election,
therefore, amounts to his refusal to carry out his
promise and commitment besides constituting a
breach of the? trust reposed in him by his electorate.
Such an act of defection cannot be? justified on any
known principle of morality much less on any
recognised Code of Islamic Polity. As pointed out in
the celebrated passage in Khawaja Ahmed? Tariq
Rahim's case (supra), quoted earlier in this judgment,
if a person after his election as a candidate of a
political party finds himself unable to subscribe to the
programme and policy of that party, the only
honourable course for him is to renounce his
representative character, which reflects his abiding
faith to the programme and policies of that party, and
seek a fresh mandate from hiss electorate on the
basis of his changed loyalties. This course will be fully
in accord with the principles of Islamic polity. The
manifest intention behind section 8-B of the Act is to
promote principled politics by rooting out corrupt e
practices embedded in our body politics. A legislation
based on such cherished? objectives cannot be
described as un-Islamic or unconstitutional under
Article 2A of the Constitution of 1973. I, accordingly,
hold that section 8-B of? the Act is neither in conflict
with Article 2-A of the Constitution of 1973 nor it
contravenes any express or known Injunction of
Islam. As a result of the above discussion, all the
preliminary objections fail and case to proceed on
merit.
(Sd.)
SAIDUZZAMAN SIDDIQUI, J.
?????????????????FAZAL KARIM, J.---The
references before the Election Commission out of
which these appeals have arisen, were ones under
subsection (2) of section 8-B of the Political Parties
Act, 1962 (I shall, in this judgment, call it the Act of
1962). They were made by the leader of the
Parliamentary. Party, Pakistan Muslim League (N) (to
be described as PML(N), Sahibzada Syed Sabir Shah,
appellant herein, against Mr. Akhtar. Hussain Shah
and Mr. Shad Muhammad Khan, respondents (they
will be so described in this judgment), the principal
question being whether the respondents had
committed such acts of defection or withdrawal
within the meaning of section 8-B, subsection (1) of
the Act of 1962, as to render them disqualified from
being members of the N.-W.F.P. Provincial Assembly.

2. There was also a threshold question before the


Election Commission (I say so because it went to the
jurisdiction of the Election Commission); it was: "Is
section 8-B of the Act of 1962 ultra vires the
Constitution?", and it is with this threshold question,
constitutionality of subsections (2) and (3) of section
8-B in particular, that we are concerned here.

3. The Election Commission held unanimously that


they were not competent to decide this question. In
the words of the learned Chief Election
Commissioner, "the issues of vires and jurisdiction
will be finally decided by the superior Courts" and to
quote from the majority judgment of the two learned
Members "the ratio deducible from Humayun?
Saifullah's case (PLD 1990 SC 599) appears to be that
proper forum for determining the vires of section 8-B
of the Act is either the High Court (per majority view)
or the Supreme Court (per minority view)" and it
"can, therefore, be impliedly held that Election
Commission would have no jurisdiction to determine
the vires of section 8-B of the Act. Even otherwise, a
forum which is the creation of a special statute would
not perhaps be competent to go into the vires
thereof'.,

4. If I may say so with respect, no such principle of


law was laid down in Humayun Saifullah Khan case.
There, references had been filed before the Election
Commission under section 8-B of the Act of 1962 by
Mr. Humayun Saifullah as leader of the Parliamentary
Party. Before those references could be decided, a
petition under Article 199 of the Constitution was
filed in the Peshawar High Court contending that
section 8-B of the Act of 1962 was ultra vires the
Constitution as it violated the provisions contained in
Articles 8, 17, 19, 25, 65 and 66 of the Constitution
and also because "in enacting it the basic structure of
the Constitution was violated". The High Court
dismissed the writ petition, among others, on the
ground that the referring authority, Mr. Humayun
Saifullah Khan, had "ceased to be the leader of the
Parliamentary Party after the election of Arbab
Muhammad Jehangir Khan as leader of the combined
opposition party in the Assembly", .and that the
references filed by him "had become invalid and
incompetent in law". Mr. Humayun Saifullah Khan
appealed, and this Court by its judgment reported as
Humayun Saifullah Khan v. Federation of Pakistan
(PLD 1990 SC 599) set aside the judgment of? the
Peshawar High Court and remanded "the matter to
the High Court for disposing of the Constitution
petition in accordance with law". My learned brother
Ajmal Mian, J. would not have, but for the majority
judgment, remanded the matter "to the High Court
for adjudication upon the vires of section 8-B of the
Act", his view being that the question "whether
section 8-B of the Act violates any fundamental right
is a question of great public importance which affects
the body politic of this country" and that "the
popularly elected members of the assemblies and the
public-at-large should know, whether section 8-B of
the Act is a legally enforceable provision or not as it
provides penalty against defection by an elected
member of an assembly". The question could in his
view be treated as one under clause (3) of Article 184
of the Constitution.

5. It is noteworthy that none of the learned counsel


appearing before us relied upon Humayun Saifullah
Khan's case for the proposition that the Election
Commission was not competent to decide the vires of
section 8-B of the Act of. 1962. Nor do I think that the
learned Members were right in thinking that "forum
which is creation of a special statute would not
perhaps be competent to go into the vires thereof'.
This view proceeds, if I may again say with respect, on
the wrong assumption that the Election Commission
is the creation of the Act of 1962. The truth is that
both the Chief Election Commissioner and the
Election Commission are the creation of the
Constitution. I think, therefore, that even if there be a
rule of law that a Court or Tribunal cannot go into the
validity of the enactment which created it that rule
had hardly any application here.

6. Learned counsel for the respondents Mr.


Sharifuddin Pirzada, Advocate argued that this Court
is not an ordinary Court of appeal and the rule that it
cannot claim higher jurisdiction than the original
Tribunal does not, therefore, apply to it. He cited,
among others, Noora's case (PLD 1973 SC 469) and
Waris Meah's case (PLD 1957 SC 157). He also
invoked to his aid the provisions of Articles 2A, 184(3)
and 187(1) of the Constitution and invited us to
determine the Constitutional validity of section 8-B,
subsections (1) and (2) and -to hold that these
subsections conflict with Article 63, clause (2) of the
Constitution, and are, therefore, invalid.
7. He cited I.A. Sherwani's case (1991 SCMR 1041),
Iqan Ahmad Khurram's case (PLD 1980 SC 153) and
Muhammad Hashim Khan case (PLD 1976 Quetta 59)
as instances of cases in which the power to decide
the vires of law was exercised by Tribunals of limited
jurisdiction. Learned counsel for the appellant, Mr.
Khalid Anwar, Advocate, cited, among others, Fazlur
Quader Chowdhry's case (PLD 1963 SC 486) and
Akhtar Ali Parvez v. Altafur Rehman (PLD 1963, (WP)
Lahore 390) for the contrary view.

8. I do not think it necessary to call in aid the


provisions of Article 2A or 184(3) of the Constitution
to decide the Constitutionality of section 8-B of the
Act of 1962. And I must confess that I am not sure
that Article 187, clause (1), of the Constitution was, in
view of the legislative history of that clause to which
our attention was invited by learned counsel for the
appellant and in particular the expression "subject to
clause (2) of Article 175", with which it begins,
intended to include the power which we have been
invited t0 exercise in this case. In my opinion, the
decision of the question can be safely based upon a
rule of statutory construction vouched by respectable
authority, namely, that included in. the questions of
law that a tribunal or authority is empowered to C
decide, is the objection based on vires, particularly if
the power giving C enactment contains machinery
which enables a party effectively to raise in the
Courts the question whether a particular provision of
law is or is not ultra ~ vires. I shall be content to refer
to two cases namely Raleigh Investment Co. v. C The
Governor-General-in-Council (AIR (34) 1947 PC 78
PLD 1947 PC 19) decided by the Privy Council, and the
second, Chief Adjudication Officer v. Foster ((1993) 1
All E.R. 705) recently decided by the Court of Appeal
and the House of Lords of England, which are directly
in point. Neither of them was cited at the Bar of this
Court. (In saying so, I am not, I hope, being unfair to
the research and industry of the learned counsel). I
had called the attention of learned counsel for the
parties to Foster case and as the principle of law
enunciated therein is identical to the one enunciated
in the earlier Raleigh Investment Co. case, I think that
I am entitled to .take into consideration the ratio
decidendi of that case also.
9. In the Raleigh Investment Co.'s case, their
Lordships of the Privy Council were hearing an appeal
from a judgment of the Federal Court of India
reversing a decree passed by a Special Bench of the
High Court of Calcutta in its ordinary original civil
jurisdiction. The suit in which that decree was passed
was brought by the Raleigh Investment Co. against
the respondent, the Governor-General-in-Council,
claiming repayment of Rs.4,35,295.5, part of a large
sum paid by it under an assessment to income-tax
made upon it. The basis of this claim was that in the
computation of assessable income, effect had been
given to a provision of the Income-tax Acts which in
the submission of the appellant was ultra vires the
Indian Legislature because that provision authorised
the assessment and charging to tax of a non-resident
in respect of dividends declared or paid outside
British India, but not brought into British India. The
Income-tax Officer had assessed the Raleigh
Investment Co. as a non-resident, and that company
gave notice of appeal to the Appellate Assistant
Commissioner of Income-tax, but later informed him
that it did not propose to proceed with the appeal.
The Appellate Assistant Commissioner confirmed the
assessment, expressing the opinion "that the
constitutional questions raised by the appellant could
not be entertained in an appeal under the Income-tax
Act, by the provision of which the Income-tax
authorities were bound".

10. One of the grounds of defence was that section


67 of-the Income-tax Act, 1922, barred the suit. That
section ran: "No suit shall be brought in any Civil
Court to set aside or modify any assessment made
under this Act ... ...". The argument for, the Raleigh
Investment Co. was that "an assessment was not an
assessment `made under the Act' if the assessment
gave effect to a provision which was ultra vires the
Indian legislature. In law such a provision, being a
nullity, was non-existent". Dealing with that
argument, their Lordships observed that "there is a
substantial question whether or not that provision is
ultra vires the Indian legislature", and held: '

"In construing the section it is pertinent to their.


Lordships' opinion, to ascertain whether the Act
contains machinery which enables an assessee
effectively to raise in the Courts the question whether
a particular provision of the Income-tax Act bearing
on the assessment made is or is not ultra vires. The
presence of such machinery, though by no means
conclusive, marches with a construction of the
section ????????which denies an alternative
jurisdiction to enquire into the same subject-matter.
The absence of such machinery would greatly assist
the appellant on the .question of construction and,
indeed, it may be added that, if there were no such
machinery and if the section affected to preclude the
High Court in its ordinary civil jurisdiction from
considering a point of ultra vires, there would be a
serious question whether the opening part of the
section, so far as it debarred the question of ultra
vires being debated, fell within the competence of
the legislature", and concluded: ???????

???????????????????????????????????????????
??????????" ?????????????it is clear that the
Income-tax Act, 1922 as it stood at the relevant date,
did give the assessee the right effectively to raise in
relation to an ??assessment made upon him the
question whether or not a provision in the Act was
ultra vires. Under section 30, an assessee whose only
ground of complaint was that effect had been given in
the assessment to a provision which he contended
was ultra vires might appeal against the assessment.
If he were dissatisfied with the decision on
??????????appeal the assessee could ask for a
case to be stated on any question of law for the
opinion of the High Court and, if his request were
refused, he? light apply to the High Court for an order
requiring a case to be stated and to be referred to the
High Court ????????????????It cannot be doubted
that included in the questions of law which might be
raised by a case stated is any question as to the
validity of any taxing provision in the Income-tax Act
to which effect has been given in the assessment
under review? Effective and appropriate
machinery is therefore, provided by the Act itself for
the review on grounds of law of any assessment. It is
in that setting that section 67 has to be construed:'

?????????????????11. In the Foster case, a


Social Security Commissioner had allowed an appeal
by Miss Foster against the decision of a Social Security
Appeal Tribunal which had affirmed the decision of
the Adjudication Officer that Miss Foster was hot
entitled to a severe disability premium. In reaching
that decision, the Commissioner held that two sub-
paragraphs of the Income Support (General)
Regulations, 1987, which were made by the Secretary
of State for Social Services under section 22(4) of the
Social Security Act, 1986 were ultra vires and that the
remainders of the Regulations were severable.
Against the decision of the Commissioner, an appeal
was preferred before the High Court and there one of
the questions was:

"Had the Commissioner jurisdiction to decide upon


the vires of the Regulations", and "if not, has this
Court power to do so?". In deciding those questions,
the High Court noticed the distinction between an
appellate and a judicial review jurisdiction; in its view
the judicial review jurisdiction was strictly confined to
the High Court and held that it was not to be
expected "that a judicial review jurisdiction would be
conferred upon those exercising a `closed statutory
appeals jurisdiction in the absence of clear words"
and that the Commissioner's decision "was out with
his jurisdiction". The learned Judges Lord Donaldson
M.R. and Nolan L.JJ. were however of the view that
though they could not decide the question of the
vires of the regulations as an appellate Court, yet they
could do so in the exercise of their judicial review
jurisdiction. Accordingly they proceeded to determine
the question of the vires of the regulations. (See
(1992) 1 QB 31).

?????????????????12. When this case reached


the House of Lords, there the question was again
debated whether the Commissioner in his capacity of
appellate authority had the jurisdiction to determine
the challenge to the vires of the? regulations. In the
leading speech, Lord Bridge referred to the relevant
section, which conferred the right of appeal against a
decision on the ground that the decision was
"erroneous in point of law". and held that the
"Commissioner has no power and no authority to
decide anything but the issue which arises in the case
before him, typically, as in this case, whether in
particular circumstances a claimant is or is not
entitled to the benefit claimed. If the success of the
claim depends, as here, on whether a particular
provision in a regulation is both ultra vires and
severable, the Commissioner's decision of that
question is merely incidental to his decision as to
whether the claim should be upheld or rejected".
Lord Bridge gave two reasons for this view; first, "it
avoids a cumbrous duplicity of proceedings"; and
secondly "it is, in my view, highly desirable that when
the Court of Appeal, or indeed your Lordships House,
are called upon to determine an issue of the kind in
question they should have the benefit of the views
upon it of one or more of the Commissioners, who
have great expertise in this somewhat esoteric area
of the law.

13. The doctrine that there is distinction between


judicial review and appellate jurisdiction in the sense
that questions of vires belong to the former? and not
to the latter jurisdiction is a judicially evolved
doctrine, and like all p judicially evolved doctrines, it
is, and ought to be, flexible and capable of new p
application. The distinction should not be regarded as
something "engraved on d tablets of stone". Foster
case serves as an example in which that doctrine
was? effectively exploded.
14. It is important to note that the Raleigh Investment
Co.'s case represents the class of case in which the
question is of the vires of primary legislation, that is
an Act of the Legislature and the Foster case is a case
of the vires of subordinate legislation. The principle of
law laid down in Raleigh Investment Co.'s case seems
to provide a complete answer to the contention that
a question of vires cannot be determined otherwise
than in the exercise of judicial review jurisdiction. As
regards the Foster case, it was said that it is
indistinguishable from cases such as IA. Sharwani's
case (1991 SCMR 1041), and Iqan Ahmad Khurram's
case (PLD 1980 SC 153) in which also the question
related to the vires of subordinate legislation. This
approach, in my view, misses the essence or what, in
legal jargon, is called the ratio decidendi of the case,
namely that included in the power to decide a
question of law is the . power to decide the vires of
legislation. The whole theory of ultra vires is that E
the act in question, be it a legislative act or an
administrative act, is beyond the E legal power of the
person or authority doing it. In the off-quoted
passage in i; Cooley's Constitutional Limitations (cited
by Cornelius, CJ. in Fazlul Quader IE Chowdhry's case
PLD 1963 SC 486, 506), the rule has been stated as
follows:

"For the Constitution of the Sate is higher in authority


than any law, direction, or order made by anybody or
any officer assuming to act under it, since such body
or officer must exercise a delegated authority, and
one that must necessarily be subservient to the
instrument by which the delegation is made. In any
case of conflict the fundamental law must govern,
and the act in conflict with it must be treated as of no
legal validity."

15. Thus, when the Parliament makes a sub-


constitutional law, it does so in the exercise of its
delegated legislative power given by the Constitution,
and in the case of subordinate legislation, also, the
maker exercises delegated, authority: In each case,
there is a law higher in authority, and the test to
determine the vires is whether the subordinate law
conflicts with the higher ;?law. If it does, then it must
be treated as of no legal validity. On principle,
therefore, there is no distinction between the vires of
an Act of Parliament and the vires of subordinate
legislation. Both are law, and if a subordinate
legislation is adjudged to be good, it is to all intents as
binding upon those to which it extends as an Act of
Parliament can be. It was held by the House of Lords
in Wicks v. DPP (1947) 1 All E.R. 205): "There is, of
course, no doubt G that when a statute enables an
authority to make regulations, a regulation G which is
validly made under the Act, i.e. which is intra vires of
the regulations G making authority, should be
regarded as though it were itself an enactment".

(Also see Tufazal Hussain v. Province of East Pakistan


PLD 1963 SC 251, 260). Then, it must be remembered
that in England there is no written Constitution and
an Act of Parliament is not subject to judicial control.
But even there, the fact that a subordinate legislation
was placed before the Parliament and approved has
not prevented the Courts from determining the vires
of such legislation. In fact, Bryce in his "American
Commonwealth" went to the length of observing that
it is the English doctrine of ultra vires in the sphere of
ordinary law that inspired those who invented the
American doctrine of judicial review of legislative
acts.

16. It is Co the credit of the fair-mindedness and


candour of Mr. Khalid Anwar, Advocate, that,
speaking for himself, he was for enlarging the Court's
jurisdiction and wanted us to determine the vires of
section 8-B. This approach is in consonance with the
maxim, upon which, in common law, the Courts
acted, namely, "boni judicis est? ampliare?
jurisdictionem". The true maxim of our law, says
Broom in his famous book "Legal Maxims" (Tenth
Edition, at page 44), is to amplify its remedies and
without usurping jurisdiction, to apply its rules to the
advancement of substantial justice.

17. It is true that in IA. Shervani's case and in Iqan


Ahmad's case, the question related to the vires of
rules, but in Muhammad Hashim Khan's case, the
challenge was to the validity of the Balochistan
Service Tribunals Act, 1974, on the ground that it was
in conflict with the fundamental right enshrined in
Article 25 of the Constitution. That case, therefore,
directly supports the view?point of Mr. Sharifuddin
Pirzada, Advocate; and so does Waris Meah's case in
which this Court was exercising appellate jurisdiction
in a criminal matter when it declared certain
provisions of Foreign Exchange Regulation Act, 1947
invalid on account of their repugnancy to the right of
equality before law clause in the 1956 Constitution.
There are observations in Mr. Fazlul Quader
Chowdhry which present some difficulty. The
question there was as to the powers of the Chief
Election Commissioner under Article 104(2) of the
1962 Constitution, which was the predecessor Article
of Article 63(2) of the 1973 Constitution. Those
observations in the judgment of Cornelius, CJ (at page
507 are: "He (the Chief Election Commissioner) is a
statutory authority and must observe and obey the
law as he finds it. It will not be for him in the
discharge of his functions to question the vires of any
law. It is to my mind inconceivable that the intention
of the Constitution could ever be that questions of
this nature should go before the Chief Election
Commissioner, and on the other hand, every reason
of a general or a special nature combines to produce
the conviction that this is strictly a question lying
within the jurisdiction of the superior Courts, at the
highest level of that jurisdiction"; and in the judgment
of S.A. Rehman, J. (at page 517) are: "The Chief
Election Commissioner is not a Court and it would
obviously be inapt for an issue of Constitutional
importance to be referred to him for decision. He
might feel himself bound by the letter of an
enactment, without going into the question of its
validity vis-a- vis the Constitution". But these
observations must be read in the context of the
fourth clause of Article 224 of the Constitution of
1962, as amended by President's Order No. 34 of
1962, which read: "The validity of any order made or
purporting to have been made under the Article shall
not be called in question". However that may be, the
important fact that distinguishes that case from this
case is that while under Article 213(2) of the
Constitution of 1973, "no person shall be appointed
to be Commissioner unless he is, or has been, a Judge
of the Supreme Court or is, or has been, a Judge of a
High Court and is qualified .... to be appointed a Judge
of the Supreme Court", and under Article 218(2) of
that Constitution, each of the two members of the
Election Commission "shall be a Judge of a High
Court..", under Article 147 of the Constitution of
1962, neither the Chief Election Commissioner nor
the Members of the Commission had to be Judges.

18. In Akhtar Ali's case (PLD 1963 Lahore 390), which


was a case under the W.P. Rent Restriction
Ordinance, 1959, Manzur Oadir, C.J. observed that an
objection to the jurisdiction of a Tribunal could take
one of the following general forms:--

(i) ??????????????????????????????that the


law under which that Tribunal is created is defective
or invalid;

(ii) ????????????????????????????that the


Tribunal is not constituted or appointed validly under
the law;

(iii) ???????????????????????????that a party


or the parties is or are not amenable to the
jurisdiction of the Tribunal; and

(iv) ???????????????????????????that the


subject-matter is outside the field in which the
particular Court is competent to act.
The learned Chief Justice held that "if a plea falling in
the first or the second category is raised before a
Special Tribunal, the answer of the Special Tribunal,
which i's a creature of the special law and is
constituted or appointed under that law, must be
simply and shortly that these matters are not for the
Special Tribunal to decide. If a party needs a decision
on those points, it will have to apply to the Courts of
general jurisdiction in appropriate proceedings... But
"if the objections are raised which fall under the third
or the fourth general categories, the Rent Controller
should immediately ascertain the grounds on which
those objections are based and he should proceed to
settle those grounds and give his decisions there and
then".

19. It has been seen that the objections here were


not objections falling under the first and the second
categories. They did not fall under category (iii)
either. They plainly fall under category (iv) for the
view of the learned Chief Election Commissioner and
the learned Members was that the subject-matter of
vires was beyond their jurisdiction. Therefore, Akhtar
Ali's case rather supports the view point that a
question of vires, if raised before a
Special Tribunal such as the Election Commission, has
to be decided by it.

20. For these reasons, Fazl-ul-Quader Chowdhry and


Akhtar Ali's cases are, in my judgment,
distinguishable. But even if they are not, we should, I
think, have a fresh look at the matter in the light of
the current of recent authority and redefine the
jurisdictional limits of Tribunals, like the Election
Commission, with power to decide questions of law
and hold that they are competent to decide the
question of vires when it is properly raised before
them in appropriate proceedings. I have already
referred to Foster case. In the Anisminic Ltd. v.
Foreign Compensation Commission (1969) 2 A.C. 147
which case has been described as a landmark in the
field of administrative law, the House of Lords of
England were dealing with the possible argument
"whether this or that question of construction has
been left to the tribunal's field, or whether, because it
pertains to the delimitation of the tribunal's area by
the legislature, it is reserved for decision by the
Courts", Lord Wilberforce said (at page 209):

"I think that we have reached a stage in our


administrative law when we can view this question
quite objectively, without any necessary
predisposition towards one that questions of law or
questions of construction, are necessarily for the
Courts." .

21. It is now well established that specialized


Tribunals may, depending on their nature and on the
subject-matter, have the power to decide questions N
of law... (Lord Wilberforce in the Anisminic's case
(1969) AC 147, 207). The H Election Commission, as a
Tribunal, is certainly within this category. It is a H
body composed of Judges. The question remitted to
it, by subsection (2) of section 8-B of that Act for its
determination, is "whether a member has become
disqualified under subsection (1)' from being a
member." and this is undoubtedly a judicial function.
The extent of the interpretatory power conferred
upon a Tribunal may sometimes be difficult to
ascertain. But here, there can be no doubt that the
interpretatory power of the Election Commission
extended to the ascertainment of the meanings of
the enacted words `defects', `withdraws', `defection'
and `withdrawal' which have been left undefined, for
without that ascertainment, the Commission could
not I determine whether the respondents 'had
become disqualified. It is settled by I authority that
the meaning to be attributed to enacted words is a
question of law. (Reg, v. Barnet (1983) AC 309, 341).
So, one of the questions of law, to be I determined by
the Election Commission under section 8-B of the Act
of 1962 was to ascertain the meanings of these
enacted words and to apply them to the facts of the
case. This sufficiently illustrates that the Election
Commission was a Tribunal of fact as well as of law.
Then, against the decision of the Commission
determining .the question whether a member has
become disqualified, subsection (3) of section 8-B
provides an appeal to this Court. Thus, "effective and
appropriate machinery" is provided by section 8-B
itself for the decision of the question of vires by this
Court, not in the exercise of its judicial review
jurisdiction, but in the exercise of its appellate I
jurisdiction.
~I
22. I am, therefore, led, and led ineluctably, to. the
conclusion that the 1 Election Commission was
competent to decide the question of the vires of I
section 8-B of the Act of 1962, and so is this Court, as
an appellate Court.

23. I can now turn to the crucial question of the


Constitutional validity of subsections (2) and (3) of
section 8-B of the Act of 1962. That question is indeed
a question of great public moment, and like any other
such question, also of great delicacy. Chief Justice
Marshall, to whom more than any other one man the
doctrine of Constitutional law owes its origin, said in
one of the later years of his life: "No question can be
brought before a Judicial Tribunal of greater delicacy
than those which involve the constitutionality of
legislative acts". However, I must acknowledge that
our task has been made less onerous by the learned
and powerful, albeit at times aggressive (or so they
sounded to my unaccustomed ears) arguments of Mr.
Sharifuddin Pirzada, Advocate who appeared for the
respondents and by the conspicuously able
arguments of Mr. Khalid Anwar, Advocate and those
of Mr. Iftikhar Gilani, Advocate, who appeared for the
respondents.

24. The function of the Courts which embraces their


general power to pass upon the constitutionality of
State statutes and of Acts of Congress in America has
been concisely termed `judicial review'. Like the
American Constitution, our Constitution too contains'
no express grant to Courts of this ' power of passing
upon the constitutionality of Acts of Parliament or
Acts of the ' Provincial Assemblies. But "there is no
position which depends on clearer ' principles than
that every act of delegated authority contrary to the
tenor of the commission under which it is exercised is
void... To deny this would be to affirm that the
deputy is greater than his principal; that the servant is
above his? master; that men acting by virtue of
powers do only what their provisions do not
authorise, but what they forbid. (Mr. Hamilton in his
Essay No. 78 under the heading "The Federalist". And
eves since the landmark case of Marbury v. Madison
(5 U.S. 1 Cranch 137 2 L.Ed. 60) in which Chief Justice
Marshall first asserted that power, and thereby, as
Chief Justice Earl Warren has put it, "rooted this
fundamental principle in American Constitutional law
as our original contribution to the science of law", it
has "become part and parcel" of all Constitutional
systems, having written Constitutions, including those
on the Westminster model, such as the Constitution
of Pakistan, Australia, Jamaica, Sri Lanka, "read into
the Constitution so to speak" so that "it is too late in
our history to change that part of our system by
judicial interpretation. It would now require nothing
short of a Constitutional amendment to do away with
the institution of judicial review". "American
Interpretation" by Craig .R .Ducat and Harold W.
Chase at p.4).

25. Marbury's case established what Lord Bridge has


described in a recent case, X Ltd. v. Morgan Grampian
(1991) 1 AC 1), as the sovereignty of Courts in
interpreting and applying the law as one of the twin
foundations supporting the rule of law. That case
must, therefore, be the starting point of any
discussion on the constitutionality of a statute. The
occasion for the assertion of that power by Chief
Justice Marshall "was a seeming collision between the
Constitution and part of a statute, section 13 of the
Judiciary Act of 1789", which, and this gives it added
significance so far as the present case is concerned,
"enlarged the Supreme Court's original jurisdiction
beyond what Article III of the Constitution
permitted". Chief Justice Marshall posed the
question: "whether an act; repugnant to the
Constitution, can become the law of the land.."? His
answer was a resounding `no':

"The original and supreme will organizes the


Government, and assigns to different departments
their respective powers. It may either stop here, or
establish certain limits not to be transcended by
those departments. The Government of the United
States is of the latter description. The powers of the
legislature are defined and limited: and that those
limits may not be mistaken or forgotten, the
Constitution is written. To what purpose are powers
limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time,
be passed by those intended to be restrained? The
distinction between a Government with limited and
unlimited powers is abolished, if those limits do not
confine the persons on whom they are imposed, and
if acts prohibited and acts allowed, are of equal
obligation. It is a proposition too plain to be
contested, that the Constitution controls any
legislative act repugnant to it; or that the legislature
may alter the Constitution by an ordinary act."
Chief Justice Marshall went on to hold:

"Certainly, all those who have framed written


Constitutions contemplate them as forming the
fundamental and paramount law of the nation, and
consequently, the theory of every such Government
must be, that an act of the legislature, repugnant to
the Constitution, is void. This theory is essentially
attached to a written Constitution, and is,
consequently; to be considered, by this Court, as one
of the fundamental principles of our society. It is not,
therefore, to be lost sight of, in the further
consideration of this subject.

If an act of the legislature, repugnant to the


Constitution, is void, does it, notwithstanding its
invalidity, bind the Courts, and oblige them to give it
effect? Or, in other words, though it be not law, does
it constitute a rule as operative as if it was a law?...
??????????? If two laws conflict with each other, the
Courts must decide on the operation of each. So, if a
law be in opposition to the Constitution; if both the
law and the Constitution apply to a particular case, so
that the Court must either decide that case,
conformable to the law, disregarding the
Constitution; or conformable to the Constitution,
disregarding the law; the Court must determine
which of these conflicting rules govern the case; this
is of the very essence of judicial duty. If then, the
Courts are to regard the Constitution, and the
Constitution is superior to any ordinary act of the
legislature, the Constitution, and not such ordinary
act, must govern the case to which they both apply".
"Those then, who controvert the principle, that the
Constitution is to be considered, in Court, as a
paramount law, are reduced to the necessity of
maintaining that Courts must close their eye on the
Constitution, and see only the law. This doctrine
would subvert the very foundation of all written
Constitutions. It would declare that an act which,
according to the principles and theory of our
Government, is entirely void, is yet, in practice,
completely obligatory. It would declare, that if the
legislature shall do what is expressly forbidden, such
act, notwithstanding the express prohibition, is in
reality effectual. It would be giving to the legislature a
practical and real omnipotence, with the same breath
which professes to restrict their powers within
narrow limits. It is prescribing limits and declaring
that those limits may be passed at pleasure. That it
'thus reduces to nothing what we have deemed the
greatest improvement on political institutions, a
written Constitution, would, of itself, be sufficient, in
America, where written Constitutions have been
viewed with so much reverence, for rejecting the
construction. But the peculiar expressions of the
Constitution of the United States furnish additional
arguments in favour of its rejection. The judicial
power of the United States is extended to all cases
arising under the Constitution. Could it be the
intention of those who have this power, to say, that
in using it, the Constitution should not be looked
into? That a case arising under the Constitution
should be decided, without examining the instrument
under which it arises? This is too extravagant to be
maintained."
26. The self-same idea, in Marbury, that "the
Constitution is either a superior paramount law,
unchangeable by ordinary means .... "has been put
differently by the Privy Council in a case from Jamaica
which has a Constitution on the Westminster model
namely Hinds v. The. Queen (1977) AC 195, 214):

" ....where, as in the instant case, a Constitution on


the Westminster model represents the final step in
the statement of full independence by the peoples of
a former colony or protectorate, the Constitution
provides machinery whereby any of its provisions,
whether relating to fundamental rights and freedoms
or to the structure of Government and the allocation
to its various organs of legislative, executive or
judicial powers, may be altered by those peoples
through their elected representatives in the
Parliament acting by speed majorities, which is
generally all that is required, though exceptionally as
respects some provisions the alteration may be
subject also to confirmation by a direct vote of the
majority of the peoples themselves. The purpose
served by this machinery for `entrenchment' is to
ensure that those provisions which were regarded as
important safeguards by the political parties in
Jamaica, minority and majority alike, who took part in
the negotiations which led up to the Constitution,
should not be altered without mature consideration
by the Parliament and the consent of a larger
proportion of its member than the bare majority
required for ordinary laws."

27. The question of the constitutionality of a law, or


to put it differently, whether a law is intra vires or
ultra vires does not depend upon consideration K of
jurisprudence or of policy. It depends simply on
examining the language of I K the constitution and of
comparing the legislative authority conferred or the K
Parliament with the provisions of the sub-
Constitutional law by which the K Parliament purports
to exercise that authority. (See Benori Lal Sharma's
case (72 IA 57) relied upon in Waris Meah's case (PLD
1957 SC 157). The essential point is that the
Constitution is the paramount law and the authority
of the Parliament is a derived authority, derived, that
is, from the Constitution. The 1 law-making function
is merely this that the Constitution is carried into
effect through the instrumentality of the legislature.
So, in deciding whether any provisions of law passed
by the Parliament as an ordinary law are inconsistent
K with the Constitution, the Courts are not concerned
with the propriety or K expediency of the law
impugned. They are concerned solely with "whether
K those provisions, however reasonable and
expedient, are of such a character K that they conflict
with an entrenched provision of the Constitution and
so can be validly passed only after the Constitution
has been amended by the method laid down by it for
altering that entrenched provision". (Hinds v. The
Queen (1977) AC 195, 214).

28. The question is, if I may venture to quote from


"Through the Looking Glass, C.vi" as did Lord Atkin in
his famous and much-discussed dissenting
'?judgment in Liversidge v. Anderson (1942) AC 206):
"which is to be master--- , that's all". The answer
obviously is?I t is to be the constitution. ,

29. The test of inconsistency which has been


generally applied was laid down in Clyde Engineering
Co. Ltd. v. Cowburn (1926) 37 CLR 466). Isaaq, J.?
,said:

"If, however, a competent legislature expressly or


impliedly evinces its M intention to cover the whole
field, that is a conclusive test of inconsistency where
another legislature assumes to enter to any extent
upon the same field."

30. That test was analysed and fully stated by Dixon,


J. in ex parte McLean (43 CLR 472, 483) in a passage
which is often cited (it was cited with approval by the
Privy Council in O' Sullivan's case (1957) AC 1):

"When the Parliament of the Commonwealth and the


Parliament of a State each legislate upon the same
subject and prescribe what the rule of conduct shall
be, they make laws which are inconsistent,
notwithstanding that the rule of conduct. is identical
which each prescribes... But the reason is that, by
prescribing the rule to be observed, the Federal
statute shows an intention to cover the subject
matter and provide what the law upon it shall be. If it
appeared that the Federal law was intended to be
supplementary to or cumulative upon State law, then
no inconsistency would be exhibited in imposing the
same duties or in inflicting different penalties. The
inconsistency does not lie in the mere co-existence of
two laws which are susceptible? of simultaneous
obedience. It depends upon the intention of the
paramount legislature to express by its enactment,
completely exhaustively, or exclusively what shall be
the law governing the ??????????particular
conduct or matter to which its attention is directed.
When a Federal statute discloses such an intention, it
is inconsistent with it for the law of a State to govern
the same conduct or matter."

31. The stage is now set to examine the language of


Article 63 of the Constitution, to compare its clause
(2) with the provisions of subsections (2) and (3) of
section 8-B of the Act of 1962 and to determine
whether there is conflict between these two
subsections and Article 63, clause (2) of the
Constitution.

32. The subject-matter of Article 63 of the


Constitution is the disqualification for membership of
Majlis-e-Shoora (Parliament). Read with Articles 113
and 127 of the Constitution, this Article and Article 62
apply also to the membership of the Provincial
Assemblies. Article 63 consists of two clauses; clause
(1) opens with the words "A person shall be
disqualified from being elected or chosen as, and
from being, a member of the Majlis-e-Shoora
(Parliament) if..." This is followed by paragraphs (a) to
(p) which contain the grounds of disqualification.
While the grounds in paragraphs (a) to (n) are specific
grounds, paragraph (p) says:

"(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:"

Clause (2) of Article 63, upon which turns the validity


of subsections (2) and (3) of the Act of 1962 reads:

"If any question arises whether a member of the


Majlis-e-Shoora (Parliament) has become disqualified
from being a member, the Speaker or, as the case
may be, the Chairman shall refer the question to the
Chief Election Commissioner and, if the Chief Election
Commissioner is of the opinion that the member has
become disqualified, he shall cease to be a member
and his seat shall become vacant:"

Like any other law, the life of section 8-B of the Act of
1962 has, as Justice Homles has wisely said in "The
Common Law", not been logic; it has been
experience. This is demonstrably clear from its history
so expansively traced by the learned Chief Justice in
his judgment,, which I respectfully adopt. It is
unnecessary to rehearse it; however, it reminds me of
an observation on slavery of an American writer
which with necessary adaptation, applies equally to
the vice of defection. That observation is:

"Jefferson and Marshall, Madison and C.C. Pinckney


had their political differences ... .... but all of them
had two things 'in common. ^They all owned salves
and they all hated slavery."

The subject-matter of section 8-B of the Act of 1962,


as its title shows, also is disqualification of members.
It reads:--
"8-B. Disqualification on ground of defection etc.--(1)
If a member of House,--

(a) ??????????having been elected as such as a


candidate or nominee of apolitical
?????????????????party, or

(b) ??????????having been elected as such


otherwise than a candidate or nominee of a political
party and having become a member of a political
party after such election, defects or withdraws
himself from the political party he shall, from the date
of such defection or withdrawal be disqualified from
being a member of the House for the unexpired
period of his term as such member unless he has
been re-elected at a bye-election held after his
disqualification."

33. ??????????There are two ways of approaching


clause (2) of Act 1963 of the Constitution. The first,
which was contended for by learned counsel for the
appellants, is that that clause is attracted only when
the disqualification is one of the disqualifications
mentioned in paragraphs (a) to (p) of clause (1) of
Article 63. It was argued that the power conferred by
paragraph (p) of clause (1) of Article 63 is the power
to provide for a disqualification "from being elected
or chosen as a member of the Majlis-e-Shoora
(Parliament) or of a? Provincial Assembly" and as
section 8-B of the Act of 1962 provides for the is
qualification of a person who is already a member, it
is not a law under the paragraph of clause 111 of
Article 63. The argument also was that the
Parliament's power to legislate is plenary and the
Parliament can legislate on the subject of
disqualification independently of that Article. For that
purpose, reference was made to item 41 of the
Federal Legislative List in the Fourth Schedule to the
Constitution which reads: "Elections to the office of
President, to the National Assembly, the Senate and
the Provincial Assemblies; Chief Election
Commissioner and Election Commissions". Learned
counsel for the respondents, on the other hand,
wanted paragraph (p) of clause (1) of Article 63 to be
read independently of the opening words of that
Article. In any case, his argument was that as both
Article 63 and section 8-B provide for the same
subject-matter, -viz. disqualification of members, and
clause (2) of that Article is very widely worded, clause
(2) would apply to `any question' of disqualification
whether it arises in respect of the disqualifications
enumerated in clause (1) of Article 63 or any other
law.

34. There can be no doubt that there is an apparent


conflict between clause (2) of Article 63 and
subsections (2) and (3) of section 8-B of the Act of
1962; (1) clause (2) of Article 63 vests the authority to
refer the question whether a member has become
disqualified in the Speaker or as the case may be, in
the Chairman. But subsection (2) of section 8-B vests
that authority in the leader of the Parliamentary Party
concerned; (2) under clause (2) of Article 63, the
question is to be referred to the Chief Election
Commissioner, but under subsection (2) of section 8-
B, the question is to be referred to the Election
Commission; and (3) clause (2) of Article 63 does nit
provide any appeal against the determination of the
Chief Election Commissioner, but, subsection (3) of
section 8-B of the Act of 1962 provides an appeal
against the determination of the election Commission
to this Court.

35. The Constitution, by its Articles '238 and 239,


provides a special procedure for the amendment of
its provisions. Clause (2) of Article 63 is, therefore, an
"entrenched" provision. The question, therefore, is
was the Parliament entitled by an ordinary law,
namely section 8-B of the Act of 1962, to strip the
Chief Election Commissioner of its power to
determine the question whether a member has
become disqualified, which question by Article 63,
clause (2), is expressly remitted to the jurisdiction of
the Chief Election Commissioner? Could the
Parliament render nugatory clause (2) of Article 63 by
removing that power to the Election Commission by
an ordinary law without adopting the special
procedure prescribed by Articles 238 and 239 for the
amendment of the Constitution? And if the answer be
in the negative, (and it cannot but be in the negative),
then, can this be excused by the good intention with
which the legislative power might have been
exceeded?
36. Paragraph (p) of clause (1) of Article 63 must be
read in the context of the fascicular s of all the
clauses of Articles 62 and 63 and their paragraphs; in
particular, it must be read with the opening part of
clause (1). If it is read divorced from the opening part
of clause (1), it will not make any sense at all; and in
any case, to so read it would have the effect of
rendering the opening

?????????????????part redundant. Omitting


from consideration paragraphs (a) to (n), for they are
not relevant for the present purpose, clause (1) of
Article 63 would read as follows:

"(1) ????????A person shall be disqualified from


being elected or chosen as, and from being, a
member of the Majlis-e-Shoora (Parliament), if?(a) to
(n) .....

(p) ??????????lie is for the time being disqualified


person being elected or chosen as a member of the
Majlis-e-Shoora (Parliament) ft of a provincial
Assembly under any law for the time being in force."
37. Article 62 of the (.,constitution is titled
"Qualifications fur membership of Majlis-e-Shoora
(Parliament)';,-it' reads:

"A person shall not be qualified to be elected or


chosen as a member of Majlis-e-Shoora (Parliament)
unless--

(a) ??????????he is a citizen of Pakistan;

(b) he is, in the case of the National Assembly, not


less than twenty-five yeas of age and is enrolled as
voter in any electoral roll for election W a Muslim,
seat or a non-Muslim seat as the case may be in that
Assembly;

(c) ??????????he is, in the case of the Senate; not


less than thirty years of age and is enrolled as a voter
in any area in a Province or, as the case may be, the
Federal Capital or the Federally Administered Tribal
Areas, from where he seeks membership;
(d) ??????????he is of good character and is not
commonly known as one who violates Islamic
Injunctions;

(e) ??????????he has adequate knowledge of


Islamic teaching and practises obligatory duties
prescribed by Islam as well as abstains from major
sins;

(f) ???????????he is sagacious, righteous and non-


profligate and honest and Ameen;

(g) ??????????he has not been convicted for a crime


involving moral turpitude or for giving false evidence;

(h) ??????????he has not, after the establishment of


Pakistan, worked against the? integrity of the country
or opposed the Ideology of Pakistan:

Provided that the disqualifications 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).

38.?? It will be noticed that according to the title as


also according to the opening part of Article 62,
paragraphs (a) to (h) all provide for qualifications; yet
according to the proviso, what paragraphs (d) and (e)
contain are disqualifications. Learned counsel for the
respondents suggested that as the proviso treats
paragraphs (d) and (e) only as containing
disqualifications, they alone should be so treated. I
should think that the use of the word `qualification' in
the title, the words `shall not be qualified' in the
opening part and the use of the word
`disqualification' in the proviso rather suggest that it
is not the label of `qualification' or `disqualification'
that truly describes the substance of the provision.
Articles 62 and 63, read together show, and in my
opinion show clearly, that they run into each other.
For instance, it is a qualification to be a citizen of
Pakistan. Obversely, it is a disqualification not to be a
citizen of Pakistan. This is brought into sharp relief by
Articles 88 and 89 of the Constitution of Sri Lanka
(learned counsel for the respondents was kind
enough to supply its copy); Article 88 thereof says:

"Every person shall, unless disqualified as hereinafter


provided, be qualified to be an elector at the election
of the President and of the Members of Parliament or
to vote at any Referendum: Provided that no such
person shall be entitled to vote unless his name is
entered in the appropriate register of electors";

and Article 89 provides:

"No person shall be qualified to be an elector at an


election of the President, or of the Members of
Parliament or to vote at any Referendum, if he is
subject to any of the following disqualifications
namely--

(a) if he is not a citizen of 'Sri Lanka; .."

39. To me, there appears no intractability in the


language of paragraph (p) of clause (1) of Article 63,
read with the opening part thereof. Rather, it makes
complete sense. It means what it says. if a person is
disqualified from being elected or chosen as a
member "under any law for the time being in force",
then he shall be disqualified also from being a
member. The provisions of Article 62 are certainly
`law within the meaning of paragraph (p) of clause (1)
of Article 63. Thus, a person, who is- not qualified
under Article 62 or by any other valid law that the
Parliament may make, to be elected or chosen as a
member, shall also be disqualified from being , a
member. Suppose A, a Muslim, had, according to
paragraph (e) of Article 62, adequate knowledge of
Islamic teachings and practised obligatory duties
prescribed by Islam, but after his election renounced
Islam. Suppose again,? that the hypothetical was
sagacious- honest arid Ameen at the time of election'
but lost those qualities afterwards. In both cases he
would stand disqualified. To one of my queries Mr.
Khalid Anwar, Advocate, adopted the position that a
person who is elected as a candidate or nominee of
one political party and then defects or withdraws
from that party cannot be dignified as an honest man
or an Ameen, within the meaning of paragraph (f) of
clause (1) of Article 62 of the Constitution. In that
case, Mr. Khaid Anwar fairly conceded, the
Parliament was, by enacting subsection (1) of section
8-B, of the Act of 1962, merely? giving effect to
paragraph of clause (1) of Article 62 read with
paragraph (p) 'f clause (l) of Article 63. And if
subsection (1) of section 8-B of the Act of 1962 is to
be confined to what may compendiously be described
as 'unprincipled defection', even then, it will e, on the
above reasoning, a lave under paragraph (p) f clause
(1) of Article 63. The result should, therefore, be that
the disqualification dealt with by subsection (1) of
section 8-B of the Act of 1962 is also a disqualification
to which clause (2) of Article 63 applies.

40?? But whatever section 8-B of the Act of 1962 is a


lacy under paragraph (p) of clause (1.) of Article 63
read with Article 62 of the Constitution or whether it
was made in the exercise of what learned counsel for
the appellants characterised as the general tar
plenary legislative power of the Parliament, the
indisputable fact remains that it is a sub-
constitutional law. The subject-matter of both Article
63 of the Constitution and section 8-13 of the Act of
1962 is the same, namely, disqualification of
members of parliament and provincial Assemblies,
The Constitution-makers,, in their wisdom, thought it
roper to provide, by clause (2) of Article 63, for the
forum. That forum is the Chief Election
Commissioner; it was to his exclusive jurisdiction that
the termination of the question of disqualification
was committed. clause (2) is? very widely worded: "If
any question arises whether a member.. has become
disqualifies, the Speaker.. shall refer the question to
the Chief Election? Commissioner ....". 7 he words
could not lie plainer and the intention manifested
?????????????them is absolutely clear that it is
the Chief Election Commissioner, arid the Chief
Election Commissar alone, oho has the power to deal
with any question' of disqualification. The power
being in the Chief Election Commissioner, there it
must remain; it can neither be enlarged nor
diminished. I have said above that Marlury's case has
an added
significance fir this case, and that lies in this that
there the Judiciary Act of 1789 was declared void
because that Act had enlarged the original jurisdiction
of the Supreme Court beyond .hat Article III of the
Constitution permitted,
41. The breach of the Constitution being clear, can it
lie excused on the P ground that subsections (2) and
(3) of section 8-B of the Act of 1962 provide. P arid
leer; I quote from the short order of m1? learned
brothers in the minority,? comparatively superior
forum lay designating the Election Commission which
consists of the Chief Election Commissioner as its
Chairman and two Judges of the High Courts".
Obviously, it cannot be. The breach is and I say so
with great respect, nonetheless - a breach because
the practical effect of subsection (2) of section 8-B of
the Act of 1962 is to deprive the Chief Election
commissioner of his power under Article 63, clause
(2). That subsection (2) of? section 8-B of the Act of
1962 does not only diminish the power of the Chief p
Election Commissioner, but it strips him of that power
completely is amply demonstrated by the decision of
the Commission in this very case. The two learned
members, who decided against the appellant, were,
on the view of subsection (2) of section 8-B of the Act
of 1962 that we take, not entitled, and had no
jurisdiction, to hear the references. Yet, they being in
majority, the references were dismissed, with the
inevitable result that the learned Chief? Election
Commissioner in whom resides, by clause (2) of
Article 63, the power' to decide, was rendered
completely ineffective. Thus, by this legislative device,
if countenanced, clause (2) of Article 63, and for that
matter, all those provisions of the Constitution which
give the decision-making to one person can be
rendered nugatory by vesting that power, by an
ordinary legislation and without amending the
Constitution, in a plurality of persons. That would, in
the familiar words of Viscount Simonds in `Attorney-
General for Australia v. The Queen (1957). AC 288),
make a mockery of the Constitution.

42.??? I would hold, therefore, that what subsection


(2) of section 8-B of the Act of 1962 has done is to
strip the Chief Election Commissioner to determine
the question of disqualification, which by clause (2) of
Article 63 vests in him exclusively, and which he is not
required to share with anybody and that as both
subsections (2) and (3) conflict, and are inconsistent;
with. clause (2) of Article 63 of the Constitution, they
are void.
43. It must necessarily follow that the proceedings
before the Election Commission and the resulting
decision dated 5-5-1994 were without jurisdiction
and that these appeals are also not competent.

44. The holding that subsections (2) and (3) of the


section 8-B of the Act of 1962 are void being
inconsistent with .clause (2) of Article 63 of the R
Constitution and these appeals are .rot competent
might appear to be R w contradictory in terms. It is
however well settled that an appeal lies r against an
order without jurisdiction in the same manner as an
appeal R against an order with jurisdiction (See Mu
hammad Ashfaq v.. The State -PLD 1973 SC 368, 378
and Ibrar Hasan v. Government of Pakistan PLD 1976
SC 1 315, 334. '

45. Further as was held in State v. Zia-ur-Rehman


(PLD 1973 SC 49 at S 77),,"IF there is a dispute on the
point as to whether a Court has or has not S
jurisdiction over a certain subject-matter, it can
certainly hear and determine S that dispute, even if
the result be that it had to hold that it has no S
jurisdiction".
?????????????????46. As we hold that
subsections (2) and (3) of section 8-B of the Act of
1962 are void and consequently the impugned order
of the Election Commission is also void and of no legal
effect, the question of the Constitutional validity of
subsection (1) of section 8-B of the Act of 1962 has I
become a hypothetical question and it is unnecessary
to decide it. Subsection (1) of section 8-B of the Act of
1962 is readily severable from subsections (2) and (3)
thereof; it is not a case where "what remains is so
inextricably bound up with the part declared invalid
that what remains cannot independently survive..."
(See (1947) A.C. 503, 518). That also makes it
unnecessary to examine the contentions of Mr.
Iftikhar Gillani, Advocate. which were mainly directed
to the question that subsection (1) of section 8-B of
the Act. of 1962 is Constitutionally valid, namely (1)
that the Courts must defer to the views. of the
Legislature, that is, in considering the vires of a
statute. it must start with a presumption of
constitutionality; (2) that in view of the detailed
character of the provisions of Articles 62 and 63, they
should be treated as belonging to the category of
statute law. For the latter contention, reliance was
placed upon Abdul Aziz v. Province of West Pakistan
PLD 1958 SC (Pak.) 499 which case was concerned
with Article 7 of the 1956 Constitution (Article 10 of
the present Constitution). It is sufficient to say that in
the precedent case itself (at p.509), Article 7 of the
1962 Constitution was described as containing
,provisions of "higher and all?embracing authority".

47?? . For these reasons, I respectfully agree with the


learned Chief Justice, that these appeals are not
competent and should be dismissed.
(Sd.)
FAZAL KARIM, J

IRSHAD HASAN KHAN, J.--- I have the advantage of


going through the leading judgment proposed to be
delivered by the Hon'ble Chief Justice and fully agree
with his masterly analysis of the facts and the lucid
and able exposition of the legal and Constitutional
issues involved therein. I would, however, venture to
add a few words of my own.
2. It is not necessary to repeat in detail the previous
history and facts of the case. Suffice it to say that the
case of the appellant is that Shad Muhammad Khan,
Deputy Speaker of the Provincial Assembly of N:
W.F.P., and Akhtar Hussain Shah, a Minister in the
Cabinet of the appellant, were won over by the
Opposition and they were to support them in the No-
Confidence Motion moved against the Chief Minister
of N.-W.F.P. on 3-2-1994. Three meetings of the
Parliamentary Party of PML(N) were held on 5th, 17th
and 22nd February, 1994, which were not attended
to by the respondents. Their absence and conduct
was discussed in these meetings, in that, they were
elected on the ticket of PML(N). Ultimately they were
disqualified on 22-2-1994 for having
defected/withdrawn themselves from PML(N). The
Speaker of the N.-W.F.P. Assembly was intimated
accordingly. On 23-2-1994, when the No-Confidence
Motion was to be voted upon, the Speaker on a point
of order by one of the members of the PML(N) gave a
ruling that the respondents were strangers in the
House. On the morning of 23-2-1994 and before
consideration of the No? Confidence Motion, the
respondents filed two separate writ petitions in the
Peshawar High Court, Peshawar, stating therein that
due to the wrong policy of the appellant in running-
the affairs of the Provincial Government, the), had
developed strong differences with him and in
consequence thereof they had resigned, which was in
the public knowledge through Press coverage. A
declaration was prayed for that they were members
of the N: W.F.P. Assembly and the appellant had no
right to deny them that status. A direction was also
sought for against the appellant, the Speaker and
Secretary of the Assembly from denying them the
status of members of the Assembly. The ruling of the
Speaker dated 23-2-1994 disqualifying their. from
being members of the Assembly and adjourning the
House to 31-3-1994, i.e. beyond seven days,
prescribed in Article 136 of the Constitution, was
challenged through an amendment of the writ
petition on Z4-2-1934. The Governor, N.. W.F.F., in
the meantime directed the Secretary, N.-W.F.P.
Assembly to convene a session of the House to meet
on 26-7-1994 at 10-00 a.m. under .Article 130(5) of
the Constitution and required the appellant to show
that they enjoyed the confidence of the majority. The
High Court suspended the ruling of the Speaker on
28-2-1994. This order was set aside by this Court vide
order dated 6-3-1994 passed in C.Ps. Nos.96 and 9/ of
1994 and C.Ps. Nos.98 and 99 of 1994 and the High
Court was requested to dispose of the main petitions
expeditiously. On remand, the High Court disposed of
the writ petitions with the consent of the parties vide
order dated 21-3-1994 passed in Writ Petitions Nos.
230 and 231 of 1994 with the following observation:--

" ... ... ... ...we shall dispose of the writ petitions that
the decision/ruling of the respondents about the
disqualification of the writ petitioners have been
withdrawn and the membership of the writ
petitioners stands restored. The matters/references
filed before the Election Commission/Chief Election
commissioner or further formal or proper references
if any made immediately about the disqualification of
the writ petitioner before:: the Election
Commission/Chief Election Commissioner shall be
attended to by the parties on the basis of day to day
hearing and due to the urgency of the subject-matter
we would request the Honourable Chief Election
Commissioner for the expeditious disposal of the?
differences/matters by day to day hearing...
3. The appellant filed two separate references under
section 8-B of the Political Parties Act, 1962
(hereinafter referred to as the Act) against the
respondents before the Election Commission of
Pakistan. The Speaker, N.-W.F.P. Assembly also filed
two separate references against the respondents
before the Chief Election Commissioner. The
respondents filed their written statements in reply to
these references, whereupon the Election
Commission framed the following issues:--

Whether section 8-B of the Political Parties Act, 1962


is ultra vires the Constitution and repugnant to the
Injunctions of Islam?

(2) ??????????Whether the Reference is


incompetent, misconceived, mala fide and? not
maintainable?

;3) ??????????What is the effect of the ,withdrawal


of the decision by the
?????????????????Parliamentary Party?
(4) ??????????What is the effect of the withdrawal
of the ruling of the Speaker?

;5) ??????????Whether the respondent has


defected from Pakistan Muslim League (Nawaz Sharif
Group), if so, what is its effect?

(6) ??????????Whether the respondent has become


disqualified from being a Member of the Provincial
Assembly of N: W.F.P., if so, from what date?

Whether the El(:ction Commission of Pakistan has


jurisdiction determine the vires of section 8-B of the
Political Parties Act, 1962?

After hearing both the parties, the Election


Commission by a majority of two to one dismissed
the references vide order dated 5-5-1994. The
references filed by the Speaker were also dismissed
by the Chief Election Commissioner through a
separate order of even date. As to the vires of section
8-B of the Act, it was unanimously held by the
Election Commission that it had no jurisdiction to
examine the same.
?????????????????4. ?????????????Feeling
aggrieved, the appellant has filed two separate
appeals under section 8-B(3) of the Act.

5. At the commencement of hearing, Syed


Sharifuddin Pirzada, learned counsel for the
respondents, prayed that notices be issued to the
Attorney? General for Pakistan and the Advocate-
General, N: W.F.P. as contemplated under rule 1 of
the Order XXVII-A, Code of Civil Procedure, inasmuch
as, substantial questions as to the interpretation of
provisions of the Constitution as well as vires of
section 8-B of the Act were involved. The prayer was
vehemently opposed by Syed? Iftikhar Hussain Gillani,
learned counsel for the appellant, on the ground that
this Court while hearing the appeal, as an appellate
authority against the impugned order of the Election
Commission, cannot exercise powers and perform
duties, which were not conferred and imposed on the
Election Commission under the Act in respect of
references filed before it. The learned counsel for the
respondents argued that this Court being the highest
Court at the apex of the judicial system in the country
and? armed with all the powers without any
limitations whatsoever, has plenary power to do
complete justice under Article 187 of the
Constitution. This power is also available under
Article 185 and appropriate relief can be granted
where vires of a statute are challenged. After hearing
the learned counsel for the parties at some length,
this Court unanimously passed the following order on
19-10-1994:--

"Issue notices to the Attorney-General for Pakistan


and the Advocates-General of the Provinces for
appearance in the Court on 23-10-1994 to assist the
Court on the question whether section 8-B of the
Political Parties Act, 1962, is ultra vires to any
provision of the Constitution."

Meanwhile, in order to save the time of the Court,


learned counsel for the appellant was directed to
read the impugned judgment. Consequently, majority
judgment was read on 19-10-1994 whereafter the
case was adjourned to the next working day, i.e. 23-
10-1994 when the minority judgment was gone
through. On its conclusion, learned counsel for the
respondents was called upon to make submissions on
the legal and Constitutional issues involved in the
appeals, Syed Sharifuddin Pirzada referred to a
number of judgments to contend that the Supreme
Court has plenary power to do complete justice under
Article 187 of the Constitution and that this power is
also available under Article 185. These authorities are
proposed to be discussed as under:--

In Benazir Bhutto v. Federation of Pakistan PLD 1988


SC 416, a petition challenging the vires of certain -
provisions of the Act was directly entertained by this
Court.

In Ch. Manzoor Ilahi v. Federation of Pakistan PLD


1975 SC 85, this Court while deciding the appeal
resolved the Constitutional and legal issues and
directed the High Court to pass the order in the light
of those observations amounting to resolving the
dispute which the High Court was itself enjoined to
do while keeping in abeyance the petition filed in this
Court.
In Delhi Judicial Service Association Tis Hazari Court v.
State of Gujarat AIR 1991 SC 2176, it was held that
the appellate jurisdiction exercised by the Supreme
Court under section 19 of the Contempt of Courts
Act, 1971; does not divest it of its inherent power
under Article 129 of the Indian Constitution and that
conferment of appellate power on the Court by a
statute does not and cannot affect the widest
amplitude of inherent powers of the Supreme Court
under Article 129 of the Constitution.

In Waris Meah v. State PLD 1957 SC (Pak.) f57, this


Court while seized of the matter as an appellate
authority under the Foreign Exchange Regulation,
1947, examined the constitutionality of section 23-B
of the Regulation.
?????????????????In Noora v. State PLD 1973 SC
469, it was laid down that Supreme Court was the
highest Court at the apex with all the powers of a
Court of appeal without any limitations.

In Ghulam Muhammad v. Irshad Ahmed PIJ 1982 SC


426, it was held:--
"The real controversy between the parties is on the
third question which relates to the effect of an
interlocutory order in a pre-emption matter passed
by an appellate Court during the pendency of (here-
an application for leave to) appeal. There is no
denying the fact that this Court passed the order
dated 19th January, 1976 under jurisdiction which is
conferred by the Constitution and the power to be
exercised in that behalf? not controlled by any
technical limitations of procedural nature: even if
they are made applicable to other appellate Courts to
which the procedure prescribed in the Code of Civil
Procedure is applicable. Article 187 of the
Constitution relied upon from the respondents' side
provides that subject to clause (2) of Article 175, the
Supreme Court shall have power to issue such
directions, orders or decrees as may be necessary for
doing complete justice in any case or matter pending
before it, including an order for the purpose of
securing the attendance of any person or the
discovery or production of any document. Order XLIX,
rule 6 of the 1956 Supreme Court Rules provided that
nothing in those Rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to
make such orders an may be necessary for the ends
of justice or to prevent abuse of the process of the
Court ... ... ... ..."

In the case of Hayat Bakhsh v. State PLD 1981 SC 265,


it was held that power of Supreme Court under
Article 185(2) and (3) read with Article 187 extends to
passing of all orders necessary for doing complete
justice or -otherwise ancillary or incidental to
facilitate exercise of such power. By virtue of this
power the Court can issue directions, orders-or
decrees as may be necessary in this behalf, including
an order for the purpose of securing the attendance
of any person or the discovery or production of any
document and such direction and orders, by virtue of
clause (2) of Article 187 are enforceable throughout
Pakistan. No doubt this power is subject to clause (2)
of Article 175, but for the present purposes it does
not make any difference because the said clause
provides that no Court shall have any. jurisdiction
save as is or may be conferred on it by the
Constitution or by or under any law. The power of the
Supreme Court to do complete justice has been saved
by Article 187 of the Constitution, and extends to
passing all orders which may be necessary for doing
complete justice to facilitate the exercise of that
power. The power conferred under Article 191 of the
Constitution on this Court to make rules regulating
the practice and procedure of the Court among
others has to be co-related to Article 187 as well. Rule
6 of Order LIX of the Supreme Court Rules clarifies
that nothing in the Rules would be deemed to limit or
otherwise affect the inherent power of the Court to
make such order as may be necessary for the ends of
justice or to prevent abuse of the process of the
Court. This Rule preserves the spirit of Article 187 and
would apply to all situations requiring orders for
achieving the ends of justice or preventing the abuse
of the process of the Court.

In Said Mian v. Mian Said Baghdad 1980 SCMR 420,


the scope of Article 187 vis-a-vis the powers of this
Court under Article 185(3), which deals with the
appeals to the Supreme Court on grant of leave, was
examined by the Full Court. It was observed that the
Supreme Court stands at the apex of the judicial
hierarchy in country having all the powers of
appellate Court and can, therefore, clearly pass all
ancillary and incidental orders which are necessary
for proper disposal and final adjudication of the-
cases.

In Asmatullah v. Abdul Majid 1991 SCMR 1969, this


Court came to the conclusion that relationship of
landlord and tenant having been established between
the parties in an ejectment petition under the West
Pakistan Urban Rent Restriction Ordinance
(Ordinance VI of 1959), the. tenant's appeal was liable
to be dismissed. However, in view of ex gratia otter
made by the tenant showing his readiness to deposit
the rent due in Court within a day possession of the
property was' directed to be handed over to the
appellant on deposit of the amount in the Supreme
Court in exercise of the power possessed by it under
Article 187(1).

6. Mr. Khalid Anwar, learned counsel for the


appellant took great pains in discussing the nature of
jurisdiction of this Court with reference to

Articles 184, 185 and 187 of the Constitution. He


argued that there were two types of jurisdiction
under. the Constitution-- one was the appellate while
the other was original. He emphasized that the
original jurisdiction should be exercised very
cautiously as there was no higher forum available in
the country to appeal against the decision of this
Court. He submitted that this Court's judgment has a
seal of finality and the spirit of section 8-B of the Act
is that everybody should have at least one right of
appeal. It was argued that if this Court in the present
case in the exercise of its original jurisdiction or acting
under its jurisdiction to do complete justice under
Article 187, declares section 8-B of the Act ultra vires,
the appellant shall not have the right of appeal,
therefore, this power should not ., exercised. Dealing
with the scope of Article 184(3) relating to original
jurisdiction of this Court, it was argued that in order
to invoke original jurisdiction, existence of two-fold
conditions is necessary; first, there must be a
question of public importance and second, such
question must be with reference to enforcement of
any of the fundamental rights. He submitted that the
ambit of Article 184(3) was discussed in Wasay Zafar
v. Government of Pakistan PLD 1994 SC 621 wherein
at page 638 it was observed:--
"However, I may observe that the Supreme Court as
the appellate ??Court against the judgments of the
High Courts, irrespective of the fact that they may.
have arisen out of the exercise of Constitutional
jurisdiction by the High Court or any other jurisdiction
has been conferred more power than the High Court
as Article 187(1) of the Constitution, it has power to
issue such directions, orders, or decrees as may be
necessary for doing complete justice in any matter
pending before it. In this regard, it may be pertinent
to refer the following observation of Muhammad
Haleem, CJ., in the case of Election Commission of
Pakistan through its Secretary v. Javaid Hashmi and
others PLD 1989 SC 396:

`The Supreme Court can in the exercise of its


appellate power correct all legal errors or defects or
disabilities and its powers are wider in scope than the
powers exercised by the High Court under Article 199,
to correct the defects of the kind mentioned above.
To emphasize the distinction, I would refer to the
observations of Cornelius, CJ. in Jamal Shah's case as
under:
`Anything in the nature, of the exercise of full scale
appellate jurisdiction must be rigorously avoided by
the High Court, for that would be to override the
requirement of the Constitution that the power under
Article 98, should be exercised so as to give full effect
to the terms of such a provision as that contained in
Article 171."

He also submitted that jurisdiction under Article


184(3) is wider than Article 199, in that, here
procedural limits do not exist as contemplated by
Article 199. The appellate jurisdiction of this Court
under. Article 185 is defined. As to Article 187 it was
argued that the title of the Article is indicative of the
fact that it relates to issue and execution of processes
of the Supreme Court. The sheet-anchor is to do
complete justice, but it does not confer independent
jurisdiction. It relates to directions, orders or decrees
in matters pending before it or directions etc. of
administrative nature. He submitted that the case-
law cited by the respondents' side is distinguishable,
in that, after the insertion of the phrase `subject to
clause (2) of Article 175' in the Constitution with
effect from 13-9-1976 under the Constitution (5th
Amendment) Act, 1976, the rule laid down in Ch.
Manzoor Ellahi's case (supra) whereby bail was
granted to the petitioner therein notwithstanding the
fact that under the Defence of Pakistan Ordinance
(XXX of 1971) jurisdiction of the superior Courts was
taken away for granting bails, but this Court invoked
the jurisdiction under Article 187, is no longer
available. The submission was that under the
unamended Article 187 this Court had jurisdiction to
do complete justice in a case irrespective of the law,
but under the amended Article 187 orders, directions,
etc., can be issued in a pending case only if
jurisdiction has been specifically conferred, either
under the law or the Constitution. Notwithstanding
the submissions as aforesaid, Mr. Khalid Anwar stated
that he is for enlargement of .the scope of jurisdiction
of the Supreme Court and his client prays that the
provision of section 8-B of the Act be declared intra
vires.

7. As to the contention of, the Khalid Anwar that title


of the Article indicates that it relates to issue and
execution of processes of the Court etc., suffice it to
say, the words of a title may be referred to in
construing the statute in order to discover the
intention of the Legislature where the meaning of any
section or sections is doubtful. Here the words used
in Article 187 are clear U and unambiguous,
therefore, in construing the same, aid to its title
cannot be invoked. Refer Construction of Statutes by
Crawford at page 123, 1940 ' Endition, wherein it has
been observed that the title is no part of an Act.
There is also no force in the submission of Mr. Khalid
Anwar that the word I `direction' used in Article
187(1) is of an administrative nature and the words e
`orders and decrees' are used in the context of issue
and execution of the processes of the Court. Clearly,
the directions, orders, or decrees used in the Article
are of very wide import and a restricted meaning
cannot be given to W these words. The word
`direction' used in Article 187(1) includes directions V
contemplated by Article 199 of the-Constitution, in
any case or matter pending V before the Supreme
Court.

I am unable to agree with Mr. Khalid Anwar that the


insertion of phrase `subject to clause (2) of Article
175' has in any manner affected the powers of this
Court to issue such directions, orders or decrees, as
may be .necessary for doing complete justice, in any
case or matter pending before it. In the case of
Ghulam Muhammad (supra), the scope of Article 187
was examined and it was held that the power
conferred on this Court under Article 187 as amended
by the Constitution (5th Amendment) Act, 1976, is
not controlled by any technical limitations of
procedural nature even if made W applicable to other
appellate Courts to which the procedure prescribed in
the W Code of Civil Procedure is applicable. The
.authorities cited by Syed W Sharifuddin Pirzada cover
post and pre-amendment period of Article 187 and
are applicable with all force to support the
proposition that this Curt can go into the question of
vires of section 8-B of the Act while acting as an
appellate, Court.

8. At this stage, Syed Sharifuddin Pirzada raised a


preliminary objection, that the appeals are not
competent as Section 8-B(3) of the Act, under which
they have been filed, is ultra vires the Constitution, in
that, the forums provided under subsections.(2) and
(3) are different from the forum provided under
Article 63(2) of the Constitution. The learned counsel
for the parties addressed arguments on this
preliminary issue at some length. During the course of
arguments several questions arose, the first was
whether under clause (2) of Article 63 of the
Constitution, exclusive jurisdiction is vested in the
Chief Election Commissioner for deciding any
question whether a member of Majlis-e-Shoora
(Parliament) has become disqualified from being a
member? The second was whether the provisions of
subsection (2) of section 8-B of the Ad, creating forum
of Election Commission for determination of any
question whether a member of the Parliament or of a
Provincial Assembly has become disqualified on the
ground of defection etc., under subsection (1) ibid,
on. a reference being made to it by the leader of the
parliamentary party concerned, are ultra' vires Article
63(2)? The third was whether the provisions of
subsection (3) of section 8-B of the Act providing an
appeal against decision of the Election Commission
under subsection (2) ibid within 30 days of the
decision to the Supreme Court are also ultra vires
Article 63(2)?
The question whether section 8-B of the Act is ultra
vires the Constitution qua the forums is a question of
great public importance. The dictates of justice,
therefore, demand to decide this important question,
in that, if the appeals are held to be incompetent for
lack of appellate authority, the other questions
should, in the. first instance, be decided by the
appropriate forums. Mr. Khalid Anwar also suggested
in the beginning of his arguments that if this Court, in
the exercise of its original jurisdiction or acting under
its jurisdiction to do complete justice under Article
187, declares section 8-B of the Act ultra vires, the
affected party shall not have the right of appeal,
therefore, this power should not be exercised. To the
same effect was the argument raised by Mr. Iftikhar
Hussain Gillani.

9. The first question as to the scope of jurisdiction of


the Chief Election Commissioner depends entirely on
the construction of Articles 62 and 63 of the
Constitution, for, there can be no doubt that the
Constitution-makers had full power to confer
exclusive jurisdiction on the Chief Election
Commissioner to form an opinion on a reference
made to him by the Speaker of a House or the
Chairman of the Senate, as the case may be, if any
question arises whether a member of a House has
become disqualified from being a member and where
5 he forms such an opinion, the member concerned
ceases to be a .member and his seat becomes vacant
and what is to be determined is whether the
intention to confer exclusive jurisdiction upon the
Chief Election Commissioner, as claimed, is
sufficiently expressed in clause (2) of Article 63 of the
Constitution and whether there is any conflict of
forums provided under the Constitution and the Act.

10. Article 173 of the 1962 Constitution provided that


no person shall hold himself out at an election as a
member of a political party unless permitted by Act of
the Central Legislature. The, Act came into force on
15-7-1962 when no Fundamental Rights were
guaranteed, which were included in the 1962
Constitution for the first time through the First
Constitution (Amendment) Act, 1963. Section 8 of the
Act provided certain disqualifications for being
member of the National Assembly or a Provincial
Assembly. Subsection (1) thereof provided that a
person who has been an office-bearer of the central
or provincial committee of a political party dissolved
under subsection (2) of section 6 of the Act; or who
has been convicted under section 7, was disqualified
from being elected as a member of the National
Assembly or a Provincial Assembly for a period of five
years from the date of such dissolution or conviction,
as the case may be. Subsection (2) provided that if a
person having been elected to the National Assembly
or a Provincial Assembly as a candidate or nominee of
a political party, withdraws himself from it, he shall,
from the date of such withdrawal be disqualified from
being a member of the Assembly for the unexpired
period of his term unless he has been re-elected at a
bye-election caused by his disqualification. The Act
was protected to be assailed in a Court of law through
Fourth Schedule to the 1962 Constitution. When the
1973 Constitution was enforced, the Act was an
existing law. Subsection (2) of section 8 was omitted
With effect from 8-5-1974 vide Ordinance XXI of 1972
dated 26-10-1974, which became Act XXI of 1975
promulgated on 18-2-1975. The omission was
deliberate and the Legislature was contended with
the proviso contained in Article 96 of the original
Constitution. Martial Law was imposed in the country
on 5-7-1977. It was lifted on 24-12-1985,
simultaneously Act XXII of 1985 was promulgated
whereby section 8-B was introduced in the Act. The
disqualification on the ground of defection was
reinserted with enlargements. Provisions relating to
registration of political parties were also inserted vide
section 3-B of the Act. Consequently, Muslim League
was quickly registered as a political party with the
Election Commission. Malik Qasim challenged it
before the Court. Section 8-B for the first time
provided a new forum for determination of the
question of disqualification on the ground of
defection. Subsection (2) thereof provided that if any
question arises whether a member of a House has
become disqualified under subsection (1) from being
a member, the question shall, on a reference by the
leader of the Parliamentary Party, be determined by
the Election Commission. Decision of this Election
Commission was subject to appeal before the
Supreme Court under subsection (3) thereof. This was
followed by Ordinance X of 1990 promulgated on 22-
10?1990 whereby Explanation to section 8-B was
substituted. For the purpose of the section, a
member of a House was deemed to defect a political
party if his case was covered by the conditions
enumerated in sub-clauses (i) and (ii) ibid. This was
followed by Ordinance VIII of 1991 promulgated on 1-
2-1991 to the same effect. This also lapsed on expiry
of four months period. Subsequently, the National
Assembly was dissolved in April, 1993. This Court
restored it in the case of Mian Muhammad Nawaz
Sharif v. President of Pakistan PLD 1993 SC 473.
Section 8-B was further amended by Ordinance XXX
of 1993 on 7-10-1993 by the Care-taker Government,
substituting in subsection (2) forum of Election
Commission by majority of members of the
Parliamentary Party of the House and in subsection
(3) substituted the forum of appeal to lie before the
Speaker of the House. This Ordinance was also
allowed to lapse on 6-2-1994.

?????????????????11. The opening part of


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

Para. (a) of Article 62 provides that a person shall be a


citizen of Pakistan. Para.(b) provides minimum age
and enrolment as a voter in the case of National
Assembly. Para. (c) lays down age and enrolment as
voter in the case of Senate, Para. (d) provides that a
person seeking election be of good character and is
not commonly known as one who violates injunctions
of Islam. Para. (e) provides that he has adequate
knowledge of Islamic teaching and performs
obligatory duties prescribed by Islam as well as
abstains from major sins. Para. (f) says he is
sagacious, righteous and non-profligate and honest
and Ameen. Para. (g) enjoins that he has not been
convicted for crime involving moral turpitude or for
giving false evidence. Para. (h) envisages that he has
not, after the establishment of Pakistan, worked
against the integrity of the country or opposed the
ideology of Pakistan. Proviso to paragraph (h)
provides that the disqualifications mentioned in
paragraphs (d) and (e) shall not apply to non-
Muslims, but such a person shall have good moral
reputation. Paragraph (i) provides that he possesses
such other qualifications as may be prescribed by Act
of Parliament.

' 2. it would thus has seen that qualifications as well


as disqualifications y specified in Article 62 pertain to
pre-election period. The disqualifications for y
membership of Parliament provided in Article 63 of
the Constitution apply to y pre- and post-election
period, as it opens with the following expression:--

"A person shall be disqualified from being elected or


chosen as, and, from being a member of the? Majlis-
e-Shoora (Parliament), if ... ... ... ...

This is followed by enumeration of various


disqualifications contained in clauses (a) to (p). It is a
common ground between the parties that defection
is not included in the list of disqualifications
mentioned in Article 62 and clauses (a) to (o) of
Article 63. These disqualifications, therefore, call for
no comment in these proceedings. The parties are,
however, at variance on the interpretation of
paragraph (p) of clause (1) of Article 63. According to
learned counsel for the appellant, defection as a
ground for disqualification is covered by it. Same is
the stand of the learned Advocate-General,
Balochistan. Syed Sharifuddin Pirzada, learned
counsel for the respondents, learned Deputy
Attorney-General, and the Advocates-General of the
Provinces of Punjab, N.-W.F.P. and Sindh are of the
view that paragraph (p) does not cover
disqualification on the ground of defection and,
therefore, section 8-B of the Act is ultra vires the
Constitution, although both sides unequivocally
stated that defection is like a contagious disease and
needs proper treatment. We are also not inclined to
affix seal of approval on an act of defection.

13.??? It vas argued by Mr. Khalid Anwar that


disqualifications mentioned in Article 63 are not
exhaustive rind do not prevent the Legislature to
prescribe disqualifications by sub-Constitutional
legislation as well as forum for determination of any
question relating thereto. He also pleaded for wide
and liberal construction of the Constitutional
provisions. To support his contention, he placed
reliance on M/s. Haider Automobile Ltd. v. Pakistan
PLD 1969 SC 623, Government of Pakistan v. Syed
Akhlaque Hussain PLI) 1965 SC 527, Arif Iqbal Hussain
Bhatti v. Federation of Pakistan PLD 1994 Lahore' 222.
Syed Wasey Zafar v. Government of Pakistan PLD
1994 SC 621 and Benazir Bhutto v. Federation of
Pakistan PLD 1988 SC 416. Mr. Khaiid Anwar also
placed reliance on Government of Balochistan v.
Azizullah Menton PLD 1993 SC 341, Pakistan
Industrial Development Corporation v. Pakistan 1992
SCMR 891, Mian Muhammad Nawaz Sharif v.
President of Pakistan PLD 1993 SC 473, Federation of
Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 and
Sharaf Faridi v. Federation of Islamic Republic of
Pakistan PLD 1989 Karachi 404 to contend that the
Constitution is a living and organic document and
widest possible construction be made.

Mr. Khalid Anwar also referred to Inamur Rehman v.


Federation of Pakistan 1992 PSC 677, Mchreen Zaibun
Nisa v. Land Commissioner, Multan PLD 1975 SC 397
anti Province of Fast Pakistan v. Sirajul Haq Patwari
PLD 1966 SC 854 to contend that presumption
regarding constitutionality of law and law must be
saved, rather thann destroyed or struck down.

14. Syed Sharifuddin Pirzada relied on Reference by


the President PLD 197 C (Pak.) 219, Fazalul wader
Chowdhry v. Muhamad Abdul Haque P:D 1963 SC
486, Messrs Karachi Steam Navigation Co. Ltd. v. M/s.
Abdul Rahman-Abdul Ghani PLD 1962 SC , State Life
Insurance Corporation of Pakistan v. Mercantile
Mutual Insurance Co. Ltd. 1993 SCMR 1394 and
Pakistan P.V.C. Ltd. v. Government of Sindh 1990 CLC
779 and Federation of Pakistan v. Saeed Ahmad Khan
PLD 1974 SC 151 to contend that the Constitution has
to be construed like any other document reading it as
a whole and giving to every part thereof a meaning
consistent with the other provisions of the
Constitution and that redundancy cannot be
attributed to the Legislature.

15. There is no cavil with the proposition advanced by


Mr. Khalid Anwar as to the principles of
interpretation - of Constitutional documents, as Z
enunciated in the precedent cases, but as rightly
submitted by Syed Sharifuddin Z Pirzada, the
Constitutional provisions may not be stretched by
interpretation with the object of saving the validity of
a statute which is palpably in conflict Z with the
Constitution. The principle that presumption
regarding constitutionality of law and law must be
saved rather than destroyed or struck A down is
subject to the exception enunciated in Abdul Aziz
alias Labha v. A Province of West Pakistan' PLD 1958
SC (Pak.) 499 strongly relied on by Mr. A Iftikhar
Hussain Gillarti, learned counsel for the appellant.
The exception is,? "it is not permissible to adapt the
Constitution for tile purpose of saving a statute when
in fact the requirernent? is that all statutes and more'
generally all sub-Constitutional laws should conform
to the Constitution. Constitutional provisions may not
be stretched by interpretation with the object of
saving the t: validity of a statute, which ex facie
contravenes the Constitution." Cornelius, J. A. further
observed:--

"In all circumstances, the full scope rind extent of tire


Constitutional A provision must first be determined,
and if the statute in question, is capable of a
construction which is conformable to the true
meaning of the relevant Constitutional provision,
then that Construction should be accepted."

In order to understand the scope of Article 63 of the


Constitution, it is natural to inquire into the subject-
matter with respect to which it is used, the language
employed and the object in view. 'This is a cardinal
rule of construction of Acts of Parliament and is
equally applicable to the constitutional documents. It
is, therefore, the duty of the Court to ascertain and
give effect to the object of the Constitution-makers as
expressed in the aforesaid Article. A bare reading of
paragraphs (a) to (p) of Article 63(1) would show that
they enumerate the disqualifications of a member of
the Parliament and clause (2) of Article 63 provides
methodology and machinery for deciding any
question relating thereto by the Chief Election
Commissioner whereas the forum provided under
section 8-B of the Act for determination of such a
question is the Election Commission. In this context it
is to be considered whether section 8-B of the Act,
which is undoubtedly a sub-?constitutional law, ultra
vires Article 63(2) qua the forum. Clearly, the
subject?matter of clause (2) of Article 63, a self-
contained code, is the forum of the Chief Election
Commissioner, which has been created by the
Constitution for determination of any question
relating to disqualification of member of C Parliament
irrespective of the fact whether it arises out of
paragraphs (a)? to (p) of clause (i) of Article 63 or any
other special law of sub-Constitutional nature. The
object in view is enshrined in paragraph (d) of Article
37 of the? Constitution, which provides that tile State
shall ensure inexpensive and Expeditious justice. T he
object, the constitution makers? had, it appears to
be, to avoid multiplicity of forums ill the matter of
deciding the question of disqualifications of a
member of a House, for the benefit of the members
of the Parliament, and to create a permanent
machinery for deciding such questions by the Chief
Election? Commissioner alone: dad there been an
express mention of disqualifications of clause (1) in
clause (2) of Article 63, there would have been no
room for argument that the forum of the Chief
Election Commissioner has been created to decide
questions of disqualifications as stated in clause (i)
anti not disqualifications provided under any sub?
Constitutional law. We ought to construe Article 63(2)
to make it available for carving out the object of the
Constitution-makers so as to make the law of
disqualification of members? of? Parliament
adjudicated upon by uniform forum. C This view finds
support from Freme v. Clement (1881) L.Ri18
Ch.D.499, which was expressed in the following
terms.--

"We ought to adopt that interpretation which will


make the law,? uniform and will remedy the evil
which prevailed in all the cases to which the law can
be fairly applied."

16. The Constitution confers exclusive jurisdiction on


the Chief Election Commissioner to decide any
question whether a member of the Parliament has
become disqualified. The Chief Election Commissioner
and the Election Commission are the creation of
different Constitutional provisions. `the former is
appointed under Article 213 and the latter under
Article 218. The duties of the former are laid down in
Article 219 and those of the latter in Article -1h(3)
Butt, the offices are separate and distinct legal
entities exercising powers within the field reserved
for them in Part VII of the constitution. The Election
Commission is not synonymous with the Chief
Election Commissioner although the latter heads the
former. Thus, visualized, the question of
disqualification of a member of the Parliament cannot
be decided by the Election Commission and the put
poi tea exercise of power by it under section 8-B
tantamount to abdication or surrender of power
excluding vesting in the Chief Election Commissioner,
which has rendered the entire proceedings before the
Election Commission as coram non judiee and void ab
D initio. Section 8-B of the Act, viewed in this context,
has the effect of taking away or abridging the powers
of the Chief Election Commissioner, therefore, to that
extent, ultra vires the Constitution. The plea of the
learned counsel for the appellant that the question of
disqualification vas decided by a better designated
forum, which included the Chief Election
Commissioner, is not tenable as there was
deprivation of jurisdiction of the competent
authority, namely, the Chief Election Commissioner.

Also the fact that the parties were heard by the


Election Commission without any objection as to
jurisdiction is of no legal consequence. Clearly, there
is no estoppel against a statute and to say the least
against the Constitution. The inherent defect in the
impugned decision cannot be cured by recourse to
the principle of natural justice, i.e. full participation of
the parties in the proceedings before the Election
Commission without raising any objection to the
jurisdiction, in that, what is prohibited by the
Constitution cannot be achieved indirectly or by
implication. This view finds support from Amanullah
Khan and others v. Federal Government of Pakistan
PLD 1990 SC 1092, in which the power to grant
registration under section 5 of the Securities ' and
Exchange. Ordinance (XXVII of 1969) was delegated
by the Federal Government to the Member Corporate
Law Authority (Corporate Law Wing). He, however,
did not pass the order exclusively, but in association
with other members of the Authority including the
Chairman, question arose whether the order of the
Authority which was of a higher status than that of
the Member,
?????????????????Corporate Law Authority was
void. A pull Bench of this Court comprising of five
Hon'ble Judges held that intervention of the
Corporate Law Authority in the matter of entertaining
and also disposing of the application under section 5
of tire Ordinance was wholly without jurisdiction
finding no support from the statute and amounted to
abdication such as to vitiate the exercise of power.

In the case of Muhammad Yaqoob v. Government of


Balochistn and another PLD 1989 SC 13, a Full Bench
of this Court comprising of five Hon'ble Judges,
presided over by Muhammad Haleem, CJ., held,
"where the impugned order ex facie without lawful
authority and there was deprivation on, instruction
the competent Court, the plea that no prejudice was
caused hardly available".

Also refer Ikrarm bus Service and others' Y. Member,


Board of 'Revenue PLD 1963 SC 564 and Yamin
Oureshi v. Islamic Republic of Pakistan P'LD 1980 SC
22 wherein it was held that there is no estoppel
against a statute. In any case, Syed Sharifuddin
Pirzada specifically denied that he conceded
jurisdiction before the Commission.
17. 1 would? now examine the plea of Syed Iftikhar
Hussain Gillani as to the nature of Article 63 with
particular reference to the forum of the Chief Election
Commissioner created under clause (2) ibid in the
light of the observations made in the case of Abdul
Aziz alias Labha (supra). The precise contention was
that the disqualifications provided in paragraphs (a)
to (p) of Article 63(1) belong to the category of sub-
Constitutional law, in that, disqualifications for being
a member of the National or Provincial Assembly
were already included in the Act. These
disqualifications with certain amendments belonging
to the category of statutory law were enacted in the
constitution, therefore. the vires of the provisions of
section 8-B of the Act being a sub-Constitutional law,
cannot be tested with reference to another sub?
Constitutional law, i.e. Article 63, even in so far as it
relates to the creation of forum of the Chief Election
Commissioner. The observations in the precedent
case have to be understood and construed with
reference to the wording of Article 7(4) of the 1956
Constitution, which provided that "no law providing
preventive detention shall authorise the detention of
a person for a period exceeding three months unless
the appropriate Board has reported, before the
expiration of the said period of three months, that
there is, in its opinion, sufficient cause for such
detention". Also refer clause (2) of Article 5 of the
1956 Constitution, which provided that "no person
shall be deprived of life of liberty save in accordance
with law".

A perusal of the aforesaid provision of the 1956


Constitution would show that the main reason for
holding Article 7(4) as sub-Constitutional law was that
Article 5(2) itself contemplated detention in
accordance with law, in this context Cornelius, J.,
held: "Article 7 proceeds to make detailed provisions
regarding particular aspects of arrest and detention,
it is clearly laying down law in a field which is included
in the larger subject of the liberty of persons under
the law". On these premises, it was held that Article
7(4) cannot be given a higher status than a sub-
Constitutional legislation, especially, where a law
already exists in a statute, namely, the Cole of
Criminal Procedure. In the case in hand the position is
entirely different, in that, the 1973 Constitution itself
created composition, duration and meetings of the
Majlis-e-Shoora (Parliament) vide Chapter 2 of Part
111. The setting up of the Parliament is provided in
Article 50. It is to comprise of the President and two
Houses, to be known respectively as National
Assembly and the Senate. Composition of the
National Assembly is given in Article 51; its duration
in Article 52; provision for summoning and
prorogation in Article 54; composition of the Senate is
given in Article 59; qualifications for membership of
the Parliament are mentioned in Article 62;
disqualifications for being member are given in Article
63 (which relate to pre- and post-election period);
and forum of the Chief Election Commissioner has
been created for determination of question relating
to disqualifications. This Court in Benazir Bhutto v.
Federation of Pakistan PLD 1988 SC 416 declared
section 3-B of the Act void in entirety and held that to
become a member of a political party is a
fundamental right. Viewed in this perspective, the
provisions contained in the Constitution regarding
disqualifications for membership of the Parliament
cannot be E considered to be a law of sub-
Constitutional category. These provisions were E
included in the Constitution to give them higher
status of constitutional nature.

18. The case of Abdul Aziz alias Labha (supra) relied


upon by Mr. Iftikhar Hussain Gillani in support of
another limb of his contention as to the saving of the
forum provided in section 8-B of the Act, goes against
him. In , that case a question arose whether with the
expiry of subsection (8) of section 3 of the Punjab
Public Safety Act, 1949, which was replaced by West
Pakistan Preventive Detention Laws (Amendment)
Ordinance, 1956, the Advisory Board constituted by
the Chief Justice also ceased to exist. It was held "In
constituting that Board, the Chief Justice of the West
Pakistan High Court relied upon the powers conferred
on him by Article 7(4) of the 1956 Constitution, and
that mere fact that an additional reference was made
to subsection (8) of section 3 of the relevant statute,
which subsection ceased to have effect on 29-5-1956
long before the present detention orders were made,
cannot be urged in diminution of the authority
derived from the Constitution itself. As we have
mentioned above, the notification was expressed so
as to relate to the appointment of the advisory board
and not to the expired subsection, but to the section
as a whole. The section deals with preventive
detention and, therefore, falls within the mischief of
clause (4) of Article 7, so that the appointment of the
advisory board for the purpose of the section was
clearly and perfectly in order". Also refer Raja
Muhammad
?????????????????Afzal v. Ch. Muhammad Altaf
Hussain 1986 SCMR 1737 wherein it was observed:--

" ... ... ... ...where express authorization exists in


favour of two F authorities or forums in respect of
identical subject, the one conferred F by superior law
prevails over that conferred by inferior law ... ... ..."

In these circumstances and for the supplementary


reasons I have agreed with the Hon'ble Chief Justice
on the facts and law, as well as the conclusions
formulated by him.? Resultantly the provisions of
section 8-B of the Act to the extent of?? forum are
declared ultra vires the Constitution. The Chief
Election?? Commissioner alone can determine the
question of defection on merits and on legal issues
arising in the references. ?
The appeals are hereby dismissed being incompetent.
??????????????
(Sd.)
IRSHAD HASAN KIJAN, J.

ORDER OF THE COURT.

By majority of seven to five the Appeals are dismissed


as being incompetent.

(Sd.)
SAJJAD ALI SHAH, C. J.

(Sd.)
,SAAD SAOOD JAN, J.

(Sd.)
,AJMAL MIAN, J.

(Sd.)
SALEEM AKHTAR, J

.(Sd)
SAIDUZZAMAN SIDDIQUI, J.

(Sd)
FAZAL ILAHI KHAN, J.

?(Sd.)
ZIA MAHMOOD MIRZA, J.

(Sd.)
FAZAL KARIM, J.

(Sd.)
MUHAMMAD MUNIR KHAN,

(Sd.)
MIR HAZAR KHAN KHOSO, J.

(Sd.)
IRSHAD HASAN KHAN, J.

(Sd.)
MUKHTAR AHMAD JUNEJO, J.
M.B.A./S-920/S
?????????????????????????????????
Order accordingly.