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Writ Petition No. 2286 of 1986, decided on 14th June, 1986.
----S. 3‑B‑Houses of Parliament and Provincial Assemblies (Elec tions) Order (5 of 1977), Art. 10(2)(6)(7‑a)‑Constitution of Pakistan (1973), Art. W(t)(p)‑Election Commission Notification, dated 20th January, 1986 Registration of political parties ‑ Provisos of S. 3‑B(2) of Political Parties Act, 1962 are of absolute nature requir ing faithful compliance‑Every political party, within one month of its formation, shall apply to Election Commission for registration‑Formation of political party shall precede application for its registra tion‑Condition precedent must be shown to have been fulfilled in order to make a political party eligible for registration by Election Commission‑Registration of political party being absolute legal requirement, no exception can be taken to steps and measures adopted for registration of political party in conformity with requirements and mandate of the provisions of Political Parties Act, 1962 Persons holding offices of such political party at national level in conformity with law, held, could incur no disqualification.
A careful perusal of the provisions of section 3‑B of the Political Parties Act, 1962 (Act III of 1962) read with the Election Commission's Notification of 20th January, 1986, makes it abundantly clear that every political party, within one month of its formation, shall apply to the Elec tion Commission for registration. The factual and legal position admits of no doubt that the formation of the political party shall precede the application for its registration. Coupled with this, subsection (2) of section 3‑B of the Act lays down other conditions precedent which must be shown to have been fulfilled in order to make a political party eligible for registration by the Election Commission such as an application for registra tion must be accompanied by names of its office‑bearers at the National level and a statement of its total membership in each Province. The provisions of subsection (2) of section 3‑B appear to be of absolute nature requiring faithful compliance. The notification issued by the Election Commission is in pursuance of the powers derived from subsection (2) of section 3‑B and also in conformity with it.
It is imperative for any political party desirous of registration to act in accordance with the mandate and the scheme of this law. 1t is necessary for a political party to first come into existence and thereafter within one month of this event to apply for registration. In the light of this state of law and imperative legal necessity, no exception to steps and measures adopted to have the party registered as a political party strictly in conformity with the requirements, and mandate of law and ultimate success in grant of registration, could be taken. A person cannot reasonably be said to have rendered himself liable to be penalised for obedience to law or doing those acts which the law enjoins him to do in order to gain eligibility and to avoid disqualification by failing to take the steps ordained by law. Office‑bearers of a political party having acted in obedience to law as envisaged by Political Parties Act, 1962 to have the party registered as a political party, it will be doing violence to the language of the Political Parties Act as well as President's Order No. 5 of 1977 and attributing absurdity to the Legislature by making it penal for such persons to obey the command of law.
‑‑ Art. 10(2)(6)(7‑a)‑‑Political Parties Act (III of 1962), S. 3‑B(6) No inconsistency exists between provisions of Art. 10(2) (b) (7‑.:) of Order 5 of 1977 and S. 3‑B (6) of Act, 1962‑Disqualification con templated by Art. 10(2) (b)(7‑a) of Order 5 of 1977 cannot be visualised independent of S. 3‑B(6) of Political Parties Act, 1961.
The disqualification stipulated by sub‑clause (7‑a) of Article 10(2) (b) of President's Order No. 5 of 1977 would attach to a person who is a member of a political party which is not eligible under the Political Parties Act, 1962 to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election. The disqualification contemplated by this provision cannot be visualised independent of subsection (6) of section 3‑B, viz., a political part); which has not been registered under subsection (3) of section 3‑B or the registration of which has been cancelled under subsection (4) of section 3‑B shall not be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election
No inconsistency between the provisions of sub‑clause (7‑a) of Article 10(2)(b) of President's Order No. 5 of 1977 and those of section 3‑B(6) of the Political Parties Act, 1962 exists.
The provisions of sub‑clause (7‑a) of Article 10(2)(6) of President's Order No. 5 of 1977 referred to above cannot be read in isolation from the provisions of section 3‑B of the Political Parties Act.
Even in cases where there is seemingly some conflict the Court must harmonise the two statutes so that they can stand together and meaning and effect given to both unless it be a case of repugnancy.
There is nothing in Article 10(2) (b) (7‑a) of President's Order 5 of 1977 of the nature which is designed to do away or wash off the objects or defeat the absolute and mandatory provisions of the Political Parties Acts 1962. The legislative intent as expressed in the Political Parties Act must, therefore, have its fullest effect and sway untrammelled by any imaginary statutory provision ‑Sub‑clause (7‑a) of Article 10(2)(5) of President's Order No. 5 of 1977 is dependent upon the provisions of section 3‑B of the Political Parties Act and divorced from that it may possibly be rendered ineffective.
‑Where there is seemingly some conflict between two statutes, Court must harmonise them so that they could stand together and meaning and effect was given to both unless it be a case of repugnancy.
‑‑ S. 3‑B‑Disqualificatiun‑Principle and basic law which must govern the fate of case is Political Parties Act, 1962 ; any dis qualification must emanate and spring from its provisions which may have been recognised by any other law relating to elections to, or membership of the Parliament.
The principle and basic law, which must govern disqualification of members of Parliament is the Political Parties Act, 1962, and it is from its provisions that any disqualification must emanate and spring from which may have been recognized by any other law relating to elections to, or membership of, the Parliament.
‑ S. 3‑B‑Constitution of Pakistan (1973), Art. 63(1)( P)‑Disquali fication‑Members of Parliament becoming President and General Secretary of a Political Party before getting such party registered, held, would not in any manner be guilty of committing any breach or infraction of provisions of Political Parties Act, 1962‑Such members had not incurred any disqualification contemplated either by Constitution itself or by any other law for the time being in force.
On a proper and fair reading of the scheme and the provisions of the Political Parties Act, 1962, Members of Parliament having been elected as President and General Secretary of a Political Party before getting same registered, were not in any manner guilty of committing any breach or infraction of the provisions of the Political Parties Act, 1962, or its scheme or policy. It is, therefore, not reasonably possible to hold such members to have incurred any disqualifications contemplated either by the Constitu tion itself or by any other law for the time being in force.
‑‑ S. 3‑B(6)‑Constitution of Pakistan (1973), Art. 63(1)(p) Disqualification‑Members of Parliament having become President and General Secretary of a Political Party for getting such Party registered, held, would at no point of time stand disqualified from being elected or chosen as, and from being, members of Parliament.
--Arts. 89(2) (a) & 270‑A(3)‑Houses of Parliament and Provincial Assemblies (Elections) (Amendment) Ordinance (I of 1986), S. 2(2) Powers of President to promulgate Ordinance‑Limits‑Validity of Ordinance I of 1986 challenged being beyond pale of powers of the President‑Word "promulgation" in Art. 89(2) (a) of Constitution Meaning‑Deeming provision giving effect to a law promulgated on from a date antecedent thereto cannot be said to fall within mischief of Art. 89(2)(x) (first part) of Constitution of Pakistan (1973) Doctrine of lapse by efflux of time‑Application.‑[Words and phrases].
A deeming provision reflects legislative intent that through a fiction of law a state of fact will be presumed to exist though it may factually not so exist. Therefore, on the basis of deeming provision giving effect to a law promulgated on 14th May, 1986, from a date antecedent thereto, it cannot tie said that the case would fall within. the mischief of first part of Article 89(2)(a) of the Constitution of the Islamic Republic of Pakistan. The word "promulgation" would mean the day on which the law was published in the official Gazette and came into force. There can be hardly any room for doubt left on this score by a bare reference to subsection (2) of section 2 of the Ordinance (I of 1986) which provides that it shall come into force at once. Therefore, in order to attract the doctrine of lapse by efflux of time, one had to show that it had been promulgated in point of fact four months prior to its being laid before the Legislature.
The question of the limits on the powers of the President to promulgate an Ordinance in terms of clause (3) of Article 2‑70‑A of the Constitution does not appear to be a matter beyond the scope of the Parliament which is supreme in its own field.
----Arts. 89(2), 270‑A (3) & 199‑Legislation‑Question of limits of President to promulgate Ordinance‑Ordinance pending before Parliament and having attained status of Bill‑High Court exercised judicial restraint from interfering when Bill was laid before Par liament.
The question of the limits on the powers of the President to promulgate an Ordinance in terms of clause (3) of Article 270‑A of the Constitution does not appear to be a matter beyond the scope of the Parliament which is supreme in its own field.
Where an Ordinance was laid before National Assembly and for that reason it had attained the status of a Bill, High Court at such juncture declined to adjudicate or to record a determinative finding which might have the unwholesome effect of influencing the Legislature in performance of its functions and in dealing with a matter pending before it which fell presently within its exclusive domain. Court refused to place obstructional spokes in the way of the Legislature from dealing with a matter pending before it in its own wisdom. On these considerations High Court decided to exercise judicial restraint from interfering at such fluid stage.
‑‑ Art. 63(1)(p)‑Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 10(2)(6)(7‑a)‑Disqualification under a statutory law cannot attain status of disqualification specified by Constitution itself.
The scheme' of Article 63 of the Constitution shows that it enumerates two types of disqualifications. Sub‑clauses (a) to (n) of clause (1) of Article 63 specify the disqualifications from being elected or chosen as, or from being, a member of the Majlis‑e‑Shoora. However, sub‑clause (p) of the same Article appears to be designed to give recognition to the disquali fication from which a person may suffer from being elected or chosen as member of the Majlis‑e‑Shoora (Parliament) or of a Provincial Assembly under any law For the time being in force. A comparison of sub‑clause (p) with the preceding clauses of the same Article clearly brings out the difference in the import of these provisions under examination. The language of sub‑clause (p) of Article 63(1) cannot reasonably be stretched so as to give to the disqualification under a statutory law the status of disqualification specified by the Constitution itself. The disqualifications contemplated by sub‑clause (P) are those from which a person suffers under the law of the land and the disappearance of the disqualification would also depend on the state of the law for the time being in force and no constitutional amendment in that behalf need to be made. 1n other cases, where Constitution itself lays down a disqualification, no, sub‑constitutional law cat) wipe it out.
Disqualification Prescribed by Article 10(2)(6) (7‑a) of Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 is not a constitutional disqualification.
‑‑‑Art. 199‑Holding of public office‑Disqualification‑‑Quo war ranto, writ of‑Writ in nature of quo warranto cannot be issued as a matter of course, on sheer technicalities on a doctrinaire approach.
‑‑‑Art. 199‑Public office‑Disqualification‑Constitutional jurisdic tion‑Quo warranto, writ of‑‑High Court cannot issue writ in the nature of quo warranto and order removal of a person from public office where both at time of writ petition and date of its decision, person did not suffer from any disqualification to hold a public office or to warrant removal from such office.
‑‑ Legislative male fide, plea of‑Judgment In re : Fauji Foundation and another v. Shamim‑ur‑Rehman P L D 1983 S C 457 referred.
‑‑‑ Art. 199‑‑Constitutional jurisdiction of High Court‑Practice and procedure‑Presentation of application for additional grounds by petitioner after pronouncement of order by High Court‑No justifica tion shown by petitioner for non‑filing of such application with office well in time so that same could have been put up before the Bench in ordinary curse‑Presentation of such application in the... manner it was done, held, was against practice and procedure of the Court and petitioner could not ask for an adjudication on additional grounds in the application as a matter of right.
Kh. Ahmad Tariq Rahim for Petitioner.
This constitutional petition in the nature of writ of quo warranto has been filed by Sardar Asseff Ahmad Ali, a member of the National Assembly of Pakistan, requesting this Court to call upon respondents Nos. 1 and 2 to show under what colour or authority of law they were purporting to hold the public office of the members of the National Assembly and in the case of respondent No. 1 to be the Prime Minister of Pakistan.
2. The case set up by the petitioner before this Court briefly stated, is that the Prime Minister of Pakistan, Mr. Muhammad Khan Junejo, and Muhammad Sattar Laleka, a member of the National Assembly, became the President and Acting Secretary‑General of the new Pakistan Muslim League before its registration by the Election Commission and thereby they had suffered the disqualification of being members of the National Assembly of Pakistan in view of the provisions of Article 63(I) (p) of the Constitution read with Article 10(2) (h) (7‑a) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 (P. O. No. 5 of 1977) and the Political Parties Act, 1962. In support of the case the petitioner has filed clippings of the daily Pakistan Times, Lahore dated 19‑1‑1986 and of the daily Nawa‑I- Waqt, Lahore dated 19‑1‑1986 and 20‑1‑1986 to show that Mr. Muhammad Khan Junejo on 18-1‑1986 was unanimously elected as the President of Pakistan Muslim League at the first meeting of the Party's Central Council after it was reconstituted The news item further states that before the aforementioned election the Council adopted the constitution of the Party. On the following day, the President of the Muslim League and the Prime Minister of. Pakistan announced the names of the office‑bearers as he had been given the mandate by the Council, so to do. It is through this mandate that respondent No.2, Muhammad Sattar Laleka was nominated to act as Secretary‑General of the Party.
3. Thereafter, it appears that Haji Saifullah Khan, a member of the National Assembly of Pakistan, after having earlier raised orally a question on floor of the House on 13‑2‑1986 submitted to the Speaker of the National Assembly a petition alleging that 49 members of the Parliament on becoming members of the Pakistan Muslim League before its registration as a political party under the Political Parties Act, 1962 had incurred the disqualification from being members of the Majlise‑e‑Shoora (Parliament) under Artic)e 63(1) ( p) of the Constitution read with section 3‑B(6) of the Political Parties Act, 196 and Article 10(2) (6)(7‑a) of Presidential Order No. 5 of 977. He requested that the question of disqualification be referred to the Chief Election Commissioner under Article 63(2) of the Constitution. Another member of the National Assembly, Dr. Sher Afghan Khan, had also on 3‑4‑1986 submitted a similar petition before the Speaker.
4. The Speaker of the National Assembly, Syed Fakhar Imam, referred the case of only respondents Nos. 1 and 2 to the Chief Election Commissioner on 7‑5‑1986. The petitioner has also filed as Annexure P/4 with this writ petition a verification by a Deputy Secretary of the Election Commission of Pakistan certifying the fact that till 5‑2‑1986 the Election Commission had not ordered the registration of any political party.
5. However, at the hearing before us, learned counsel for the petitioner informed that the application for registration of the new Muslim League as a political party was submitted to the Chief Election Commissioner on 20‑1‑1986 and according to the best of his information the registration was granted on 8/9‑2‑1986. The copy of the application for registration or its enclosures have not been filed with the petition.
6. We have heard learned counsel for the petitioner at some length. .
7. The main brunt of the attack by learned counsel for the petitioner at the hearing before us was directed against the validity and the vires of the Houses of Parliament and Provincial Assemblies (Elections) (Amend ment) Ordinance, 1986 (Ordinance No. I of 1986). The precise grounds raised by the learned counsel were that by virtue of Article 270‑A of the Constitution, as it stood after the Eighth Amendment, the President was denuded of the power to amend or alter any Presidential Order, Ordinance, etc., which were in force before the issuance of proclamation of lifting of Martial Law on 30‑12‑1985. The learned counsel explained that Ordinance I of 1986 was ultra vires of the powers of the President under Article 89 of the Constitution in view of the Explanation to clause (3) of Article 270‑A of the Constitution. It was next urged on the strength of Article 63(1)(p) of the Constitution, that respondents Nos. 1 and 2 on becoming office bearers of an unregistered political party had incurred a constitutional disqualification from being members of the National Assembly by virtue of Presidential Order No. 5 of 1977. He further argued that assuming that Ordinance I of 1986 had been validly promulgated it intended to give retros pective effect from 30‑12‑1985. It was submitted that this could not be done; so as to cure the disqualification incurred by respondents Nos. 1 and 2 on 19‑1‑1986.The learned counsel alternatively further submitted that even if the Ordinance was to be considered effective retrospectively from 30‑12‑1985, it fell for consideration whether the constitutional life of the Ordinance had expired under Article 89 of the Constitution. According to learned counsel where limitations were placed by the Constitution on the legislative powers of the President or where such limitations existed qua the Legislature, then such limitations could not be side‑stepped or by‑passed ever through the device of a constitutional amendment. It was also the case of the petitioner that the advice given by the Cabinet/the Prima Minister to the President for promulgation of the Ordinance was male fide as well as colourable as It enured for the benefit of respondent No. 1, the Prime Minister.
8. The learned counsel took up the stance that the mere fact that Ordinance I of 1986 had been promulgated by the President to do away with the disqualifications suffered by respondents Nos. 1 and 2 was by itself sufficient to establish that these respondents had, in fact and in law incurred a disqualification from being members of the National Assembly of Pakistan. We were constrained to point out to the learned counsel that instead of conjectural, remote inferential or presumptive conclusions, the petitioner ought to discharge his onus of sowing in the light of the law which stood attracted to the facts of the present case that indeed respondents Nos. 1 and 2 were hit by any provision of the Constitution or a law which had the effect of rendering them disqualified from being the members of the National Assembly of Pakistan. We also asked the learned counsel whether the disqualifications from which respondents Nos. 1 and 2 were alleged to be once suffering continued to attach to them even after they were office bearers/members of a registered political party. The learned counsel with candid frankness admitted before us that respondents Nos. 1 and 2 did not suffer from any disqualification of being members of the National Assembly consequent upon the registration of the Pakistan Muslim League as a political party by the Election Commission of Pakistan on 819‑2‑1986.
9. Coming to the main question of the disqualification of respondents Nos. 1 and 2 as a sequel to their becoming the office‑bearers of a political party before its registration, the learned counsel wished to rely on the provisions of Article 10(2)(b)(7‑a) of Presidential Order No. 5 of 1977 and Article 63(I)(p) of the Constitution of the Islamic Republic of Pakistan. We may here with advantage reproduce the relevant provisions of Article 63 of the Constitution which read‑
"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) he is of unsound mind and has been se 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) . . ..
(e) . . ..
(p) be 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) . . ..
We may also refer to the provisions of Presidential Order No. 5 of 1977 pressed into service by learned counsel ‑for the petitioner which read as follows :‑
"10. Qualifications and disqualifications for membership of Parliament.‑(1)
(2) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament‑
(a) . . ...
(aa) . . ..
(aaa) . . ..
(aaaa) . . ..
(b) if‑
(1) . . ..
(2) . . ..
(3) . . ..
(7‑a) he is a member of a political party which is not eligible under the Political Parties Act, 1962 (III of 1962), to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election ; or
10. Before dealing with the above contentions raised by the learned counsel, we would like to attend to the substance of the matter which flows from a proper interpretation of the scheme and the provisions of the Political Parties Act. 1962 construed in the light of the attending circum stances and the state of prevailing law, This exercise seems necessary in order to decide whether respondents Nos. 1 and 2 were guilty of infringement of any provision of the Political Parties Act, any rules or statutory notification issued thereunder which entailed the penalty of disqualification from being members of the National Assembly of Pakistan. Section 3-B of the aforesaid Act for the purpose of ready reference is reproduced as under :‑ ..
"3‑B. Registration of political parties.‑(I) Every political party in existence at the commencement of the Political Parties (Amendment) Ordinance, 1979, shall, within one month of such commencement, and every political party formed after such commencement shall, with in one month of its being formed, apply to the Election Commission for registration.
(2) An application under subsection (1) shall be made on behalf of a political party by such person and in such form, and shall be accompanied by such documents besides a copy of its constitution, a list of the names of its office‑bearers at the National level and a statement of its total membership in each Province, as the Election Commission may, by notification in the official Gazette, specify.
(3) The Election Commission shall register a political party applying for registration in accordance with subsection (2) if the Commission is satisfied that the political party ‑
(a) has published a formal manifesto, that is to say, the party's foundation document or constitution giving its aims and objectives and provided therein for elections of its office‑bearers being held periodically ;
(b) has undertaken to publish any amendment to spy document referred to in clause (a) as and when such amendment is made ;
(c) believes in the Ideology of Pakistan and the integrity and sovereignty of Pakistan : and
(d) has submitted its accounts as required by section 3-A.
(4) If a political party which has been registered under subsection (3)‑
(a) fails, or has failed to submit its accounts within 4,he period ‑specified in section 3‑A or the rules made thereunder ;
(b) fails to hold election of any of its office‑bearers within the time allowed by, and in accordance with, its constitution and rules ;
(c) propagates any opinion. or acts 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 ; ,
(d) receives any aid, financial or otherwise, from the Government or any political party of a foreign country, or any portion of its funds from foreign nationals; or
(e) does or omits to do any such act or thing as would have resulted in registration being refused to it in the first instance,
then, without prejudice to any action that may be taken in respect of the political party under section 6, the Election Commission may, after giving the political party an opportunity of showing cause against the action proposed to be taken, cancel its registration.
(5) The cancellation of the registration of a political party under sub section (4) shall be notified by the Election Commission in the official Gazette.
(6) A political party which has not been registered under subsec tion (3), or the registration of which has been cancelled under sub section '(4), shall not be eligible to participate in an election to a seat to a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election.
11. When confronted with the above‑quoted provisions of Act III 1962, learned counsel frankly admitted that by virtue of section 3‑B(I) he Act, it was permissible far the Muslim League or its office‑bearers apply to the Election Commission for registration within one month of 3eing formed. Learned counsel did not wish to question the vices or validity of the Political Parties Act or the power of the Election Commission to issue a notification under the said' Act. He also did not dispute scope and the effect of subsection (6) of section 3‑B of the said Act.
12. A careful perusal of the provisions of section 3‑B' of the Political Parties Act, 1962 (Act III of 1962) read with the Election Commission's Notification of 20th January, 1986, makes it abundantly clear that ever political party, within one month of its formation, shall apply to the) Election Commission for registration. The factual and legal position) admits of no doubt that the formation of the political party shall precede the application for its registration. Coupled with this, subsection (2) of section 3‑B of the Act lays down other conditions precedent which must be shown to have been fulfilled in order to make a political party eligible for registration by the Election' Commission ,such as an application for registration must be accompanied by names of its office‑bearers at the National level and a statement of its total membership in each Province. The provisions of subsection (2) of section 3‑B appear to us to be of absolute nature requiring faithful compliance. The notification issued by the Election Commission is in pursuance of the powers derived from subsection (2) of section 3‑B, referred to above, and also in conformity with it.
13. On a careful analysis of the provisions of the Political Parties Act under examination, we have reached the conclusion that it is imperative for any political party desirous of registration to act in accordance with the mandate and the scheme of this law. It is necessary for a political party to first come into existence and thereafter within one month of this event to apply for registration. In the light of this state of law and imperative legal necessity, we have not been able to appreciate the anxiety of the petitioner in taking exception to the steps and measures adopted by respondents Nos. 1 and 2 to have the Muslim League registered as a political party strictly in conformity with the requirements and mandate of law and ultimate success in grant of registration on 8/9‑2‑1986. It defies good sense as to how a person can reasonably be said to have rendered himself liable to be penalized for obedience to law or doing. those acts which the law enjoins him to do to order to gain eligibility and to avoid disqualification by failing to take the steps ordained bylaw. After having noticed. the scheme of Act III of 1962 as well as the notification of the Election Commission, we have been unable to appreciate the bona fide of the grievance of the petitioner. Respondents Nos. 1 and 2 had acted in obedience to law as envisaged by the Political Parties Act. 1962 to have the Muslim League registered as a political party. We may here with advantage refer to the provisions of clause (2) of Article 5 of the Constitution which read as under :‑
"5. Loyalty to Sate and obedience to Constitution and Law.‑(1)
. . ..
(2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever tee may be and of every other person for the time being within Pakistan."
It will be doing violence to the language of the Political Parties Act as well as President's Order No. 5 of 1977 and attributing absurdity to the Legislature by making it penal for any person to obey the command of law.1 During tae arguments before us it was not disputed by learned counsel for the petitioner that the steps taken by respondents Nos. 1 and 2 were in conformity with the requirements of subsections (1) and (2) of section 3‑B of the Political Parties Act read with the notification of the Election Commission of Pakistan. Learned counsel in fact agreed that the Pakistan Muslim League having been formed had applied for its registration well within one month in accordance with the required procedure ordained by law and consequently it stood registered with effect from 8/9‑2‑1986. We have already noticed that the written application was made for the first time by Haji Saifullah Khan, a member of the National Assembly, before the Speaker on 13‑2‑1986. This was a date on which according even to the statement of learned counsel for. the petitioner the Muslim League stood registered as a political party. We have, therefore, no hesitation in holding that as per the scheme of the Political Parties Act, respondents Nos. 1 and 2 cannot be held to be in breach of any law. In fact, no question of penalising them or their incurring any disqualification for adherence to law, thus, properly arose.
14. Next, we would like to take up the main argument of the learned counsel raised on the strength of Article 10(3) (b) (7‑a) of Presidential Order No. 5 of 1977. The disqualification stipulated by sub‑clause (7‑a) would attach to a person who is a member of a political party which is not eligible under the Political Parties Act, 1962 to participate in an election to a sea in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election. The disqualification contemplated by this provision cannot be visualised independent of subsection (6) of section 3‑B, viz., a political party which has not been registered under subsection (3) o the registration of which has been cancelled tinder subsection (4) shall no be eligible to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election. Adverting to the facts of the present case, it stands conceded that the Pakistan Muslim League has been registered as a political party by the Election Commission under subsection (3) of section 3‑B of the Political Parties Act, 1962, with effect from 8/9‑2‑1986. It is nobody's case that any action was taken against the Muslim League in terms of sub section (4) of section 3‑B of the said Act for cancelling its registration.) Learned counsel for the petitioner was unable to point out any inconsistency between the provisions of sub‑clause (7‑a) of Article 10(2) (b) of Presidential Order No. 5 of 1977 and those of section 3‑B (6) of the Political Parties Act, 1962. These provisions are embodied in existing laws which are equally operative. The rule of interpreta tion is too well‑known that even in cases where there is seemingly some conflict the Court must harmonise the two statutes so that they can stand together and meaning and effect given to both unless it be a case of repugnancy or an impossibility. This is not a case of repugnancy. It follows, therefore, that the principal and basic law which must govern the fate of respondents Nos. 1 and 2 is the Political Parties Act, 1962 and F it is from its provisions that any disqualification must emanate or spring from, which may have been recognized by any other law relating to election to, or membership of, the Majlis‑e‑Shoora‑
15. We find on a proper and fair reading of the scheme and the provisions of the Political Parties Act. 1962 that in the facts of this case respondents Nos. 1 and 2 are not in any manner guilty of committing any breach or infraction of the provisions of the Political Parties Act, 1962 or its scheme or policy. It is, therefore, not reasonably possible to hold that respondents Nos. 1 and 2 have incurred any disqualifications con templated either by the Constitution itself or by any other law for the time being in force.
In our considered view, the provisions of sub‑clause (7‑a) referred tot above cannot be read in isolation from the provisions of section 3‑B of the Political Parties Act. After having very carefully addressed ourselves to the scheme of Article 10 and in particular sub‑clause (7-a) of Presidential Order' No. 5 of 1977 and the provisions of the Political Parties Act, we have not found it possible or permissible to read into this sub‑clause (7‑a) anything of the nature which is designed to do away or wash off the objects or defeat the absolute and mandatory provisions of the Political Parties Act. The legisla tive intent as expressed in the Political Parties Act must, therefore, have its fullest effect and sway untrammelled by any imaginary statutory provision. We may observe at the cost of repetition that sub‑clause (7‑a) of Article 10 (2) (b) of P. O. No. 5 of 1977 is dependent upon the provisions of section 3‑B of the Political Parties Act and divorced from that it may possibly be rendered ineffective.
We have, thus, reached the irresistible conclusion that in the facts of the present case, respondents Nos. 1 and 2 at no point of time stood disqualified from being elected or chosen as, and from being, members of the Majlis‑e‑Shoora (Parliament) by virtue of the fact that respondent No. 1 became the President of the Pakistan Muslim League on 18‑1‑1986 and respondent No. 2 was nominated as the Acting Secretary‑General of the same political party on the following day.
16. In view of our finding that respondents Nos. 1 and 2 did not stand disqualified at any point of time from being members of the National Assembly of Pakistan on their becoming the members or office‑bearers of the Muslim League, it is hardly necessary to examine the arguments advanced by‑‑ learned counsel for the petitioner on the ground of validity or otherwise of Ordinance I of 1986 being beyond the pale of powers of tae President of Pakistan. We may observe here that learned counsel for the petitioner during the arguments prayed that this Court may graciously at least call upon the Attorney‑General of Pakistan to explain the circumstances leading to promulgation of the Ordinance. We considered the request but found no legal warrant or justification for such an unnecessary and futile exercise.
17. However, we do not wish to be uncharitable to the learned counsel by not dealing with some of the points raised by him in respect to the Ordinance in question.
We have not been able to appreciate the submissions of learned counsel for the petitioner to the effect that Ordinance I of 1986 though promulgated on 14‑5-1986 was rendered void by efflux of time because it contains a deeming provision whereby it was to take retrospective effect from 30‑12‑1985. A deeming provision as it is well‑understood reflects legislative intent that through a fiction of law a state of fact will be presumed to exist though it may factually not so exist. Therefore, on the basis of, deeming provision giving effect to a law promulgated on 14‑5‑1986 from a date antecedent thereto, it cannot be said that the case would fall within the mischief of first part of Article 89 (2) (a) of the Constitution of the Islamic Republic of Pakistan. The word "promulgation" would mean the day on which the law was published in the official Gazette and came into force. There can be hardly any room for doubt left on this score by a bare reference to subsection (2) of section 2 of the Ordinance which provides that it shall come into force at once. Therefore, in order to attract the doctrine of lapse by efflux, of time, the petitioner lead to show that it had been promulgated in point of fact four months prior to its being laid before the Legislature. In this view of the matter, the period of four months has yet not expired. Learned counsel for the petitioner was unable to make out any plausible case and thus we find no hesitation in repelling this argument as being devoid of substance.
18. It is significant to mention that we stand informed that Ordinance I of 1986 has been laid before the National Assembly of Pakistan during its current session and on the happening of this event, according to scheme of the Constitution, it has attained the status of a bill. .The question of the limits on the powers of the President to promulgate an Ordinance in terms of clause (3) of Attic a 270‑A of the Constitution does no appear to be a matter beyond the scope of the Parliament which is supreme in its own field. We at this juncture arc not minded on principle and authority to undertake an adjudication or to record a determinative finding which may have the unwholesome effect of influencing the legislature in performance of its functions and in dealing with a matter pending before it which falls presently within its exclusive domain. We would, therefore, not like to place obstructional spokes in the way of the Legislature from dealing with a matter pending before it in its own wisdom. It is anybody's guess as to what the outcome of the legislative exercise would be. On these considerations we have decided to exercise judicial restraint from interfering at this fluid stage.
19. We would like to now deal with another argument of learned counsel for the petitioner in so far as it is advanced on the strength of Article 63 (1) (p) of the Constitution of the Islamic Republic of Pakistan inasmuch as the learned counsel was insistent upon making us believe that the disqualification provided by sub‑clause (7‑a) of Article 10 (2) (b) of Presidential Order No. 5 of 1977 had become a constitutional disqualifica tion. The scheme of Article 63 of the Constitution shows that it enumerates two types of disqualifications. Sub‑clauses (a) to (n) of clause (1) of Article 63 specify the disqualifications from being elected or chosen as, or from being, a member of the Majlis‑e‑Shoora. However, sub‑clause (p) of the same Article appears to be designed to give recognition to the disqualification from which a person may suffer from being elected or chosen as member of the Majlis‑e‑Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force. A comparison of sub‑clause (p) with the preceding clauses of the same Article clearly brings out the difference in the import of these provisions under examination. The language of sub‑clause (p) of Article 63 (1) cannot reasonably be stretched so as to give to the disqualifications under a statutory law the status of disqualification specified by the Constitution itself. The disqualifications contemplated by sub‑clause (p) are those from which a person suffers under the law of the land and the disappearance of the disqualification would also depend on the state o6 the law for the time being in force and no constitutional amendment in that behalf need to a be made. In other cases, where Constitution itself lays down a disqualifica tion, no sub‑constitutional law can wipe it out. We would thus repel the argument as misconceived.
20. We pointed out to the learned counsel the need for overcoming a seemingly insurmountable legal hurdle standing in his way against the issuance of a writ in the nature of quo warranto calling upon respondents Nos. 1 and 2 to show under what authority of law they claimed to hold or purported to hold public office of the members of the National Assembly when none of them suffered from any disqualification from being elected, chosen or being member of the said Assembly or from holding a public office consequent upon registration of the Muslim League as a political party. Both at the time of institution as well as the decision of this petition the legal position was the same. Learned counsel for the petitioner was unable to give any satisfactory reply or to persuade us to adopt a different view. We wish to rely on the Supreme Court decision in re: Farzand Ali v. Province of West Pakistan (P L D 1970 S C 98), and the principle of law laid down therein in terms:‑‑
"If the quo warranto had been allowed by the High Court, it would have taken effect only from the date of the pronouncement of the High Court's judgment and not from any date anterior thereto.
In the light of this dictum, we have been unable to discover any principle of law whereby the High Court in exercise of the constitutional jurisdiction can order the removal of a person from a public office despite the patent and admitted position that both at the time of the institution of the p writ petition and on tire date of the decision respondents Nos 1 and 2 did not suffer from any disqualification to hold a public office or to warrant removal from such office by way of issuance of a direction in the nature of writ of quo warranto.
In Hari Shankar Prasad Gupta v. Sukhdeo Prasad and another (A I R 1954 All. 227) a Full Bench of the Allahabad High Court refused to entertain an application under Article 226 of the Constitution of India for grant of information in the nature of quo warranto to invalidate the constitution of the Elation Tribunal on the ground that one of the members was not qualified to act since sue:, member, at the date of the hearing of the petition, had become so qualified.
We also find support from the case reported as Kamal Hussain v. Sirajul Islam (PLD1969SC42), wherein it has been held that the grant of relief in writ jurisdiction is a matter of discretion and it was quite legitimate on the part of the High Court to test bona fide of the relator to see if he has come with clean hands. A writ in the nature of quo warranto in particularize not to issue as matter of course, on sheer technicalities on a doctrinair approach. The, case in hand stands on no better footing.
21. The plea of legislative male fides advanced by learned counsel for the promulgation of Ordinance I of 1986 finds its answer in the instructive judgment of the Supreme Court in re: Fauji Foundation and another v. Shamimur Rehman (PLD1983SC457).
22. Before parting with this case we wish to record the fact the after we had pronounced orders in this case the learned counsel for the petitioner presented an application for additional grounds. The presenta tion of this application in the manner it has been done is against the practice and procedure of this Court. There is no justification shown for non‑tiling of this application with the office well in time so that it could have been put up before us in ordinary course. However, we have perused this application and we find that the additional grounds taken in this application have been broadly taken care of by us in this decision. The petitioner, therefore, cannot ask for an adjudication on these points as a matter of right.
23. For the reasons stated above, we find this petition devoid of merit. In view of the patently clear position of law, we have not felt inclined to call upon respondents Nos. I and 2 to show under what authority of law they are holding or purporting to hold public offices. The writ petition accordingly fails and is hereby dismissed in limine.
M. B. A. Petition dismissed.
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