Muhammad Salauddin Vs. Government of Pakistan

IN THE FEDERAL SHARIAT COURT yys? (Original Jurisdiction)

O

PRESENT

HON:MR;JUSTICE GUL MUHAMMAD KHAN CHIEF JUSTICE

HON:MR.JUSTICE DR.MUFTI SYED SHUJAAT ALI QADRI

HON:MR.JUSTICE MUFTAKHIRUDDIN.

HON:MR.JUSTICE IBADAT YAR KHAN

HON:MR.JUSTICE ALLAMA DR.FIDA MUHAMMAD KHAN

^SHARIAT PETITION N0.13/L of 1988 ^ Muhammad Salah-ud-Din etc. Versus Government of Pakistan.

SHARIAT PETITION NO.18/1 OF 1988 ^

Malik Muhammad Usman Versus Government of Pakistan.

tS SHARIAT PETITION'NO. 19/1 OF 1988 \ / Habib-ul-Wahab Al-Khari Versus Government of Pakistan & another s

SHARIAT PETITION'NO.26/1 OF 1988

Mrs.Yasmeen Raza Versus Government of Pakistan.

S ' SHARIAT PETITION N0.4-K OF 1988

Abdur Rab Jaffery etc. Versus Government of Pakistan k* SHARIAT PETITION N0.3/L OF 1989 Bashir Ahmed Naveed Versus Government of Pakistan

Counsel for Petitioner in Mr.Khalid M.Ishaq Shariat Petition N0.13/L Advocate of 1988 Mr.Javed Hassan, Advocate Petitioner in S.P.No.19/1 M r .Habib-ul-Wahab of 1988 Khairi,Advocate Counsel for Petitioner Mr.Mohammad Azam, in S.P.N0.3/L of 1989 Sultanpuri,Advocate.

Contd......P/II

•V* «

-II-

PETITIONERS IN PERSON: H r .Salah-ud-Din Mr.Mujeeb-ur-Rehman Shami Mr.Altaf Hussain Qureshi Malak Muhammad Usman Mrs. Yasmin Raza Mr.Safehir Ahmad Navefed Mr.Abdul Rab Jafri

For the Federal Govt. Hafiz S.A. Rehman, Standing Counsel for Federal Government.

Mr. Ghulam Mustafa Awan, Standing Counsel for Federal Government.

Mr. Muhammad Aslam Janjua, Assistant Secretary, Parliamentary Affairs Division Islamabad

M r .Muhammad Akram, Assistant Secretary, Parliamentary Affairs Division Mr. Tariq Ayub Khan, Section Officer.Ministry of Interior, Islamabad

For the Govt, of Punjab Syed Iftikhar Hussain, Asstt. Advocate General.

Mr. Nazeer Ahmad Ghazi, Asstt. Advocate General.

For the Govt, of Baluchistan Mr. M. Yaqoob Yousafzai*., Advocate General Mr. M. Shafi Rakhsani, Asstt. Advocate General Mr. Mohammad Afzal, Deputy Secretary,Baluchistan Assembly.

For the Govt, of Sind Mr. K.M.Nadeem, Asstt. Advocate General Mr. Abdul Waheed Siddiqui, Advocate.

Cont'd___ P/.III

- m -

JURIS CONSULTS AND SCHOLARS Maulana Gohar Rehman Maulana Mohammad Taasin Mr.Riaz-ul-Hassan Noori Maulana Salah-udnBin Yousaf Dr. Muhammad Amin Dr. Ahsan-ul-Haq Maulana Abdul Shaheed Dr. Akhtar Saeed Dr. Nisar Ahmad

Allama Javed-ul-Ghamdi Others

Mr. Rafiq Ahmad Bajwa,Advocate Mr. G.M. Saleem,Advocate Syed Ahmad HasMain,Advocate Mr.Rashid Murtaza Qureshi, Advocate.

Haji Muhammad Muiz-uddin Habib- Ullah.

Mr. Abdul Rashid Syed Fidai Mahdi Shah. Shaikh Mushtaq Ali,Advocate Mr. M.A. Shaikh,Advocate Mr. M.A. Rashid Journalist. 1 Maulana Wasi Mazhar Nadvi Dr.Muhammad Younas Sufi Mohammad Siddique Malik Zahoor rAhmad Ch. Mohammad Iqbal,Advocate Date*of Hearing 21,22,23,28,29 & 30th May,1989 at Lahore at Karachi 26,27 and 28th February,1989 4,5 and 7th June,1989.

Date of Decision K - t o - >3 id

JUDGMENT

IBADAT YAR KHAN, J .- The above noted Shariat Petitions have been filed under Article 203-D of the Constitution of Islamic Republic of Pakistan for seeking a declaration that the entire electoral system of Pakistan is un-Islamic against the Sharia and repugnant to the concept of the society visualised by the Holy Quran and the Sunnah of the Holy Prophet. That formation of Political parties, the Election compaign, the method of convassing for winning support, the adult franchise, the legislative organs created through the above process are totally un-Islamic. That the entire system should be completely eliminated and replaced by a new system in accord with the "Objective Resolution" which is the cornerstone of the State laid by the founding fathers of Pakistan. These petitions were filed soon after the general elections of November 1988 and according to the petitioners they have chosen the peaceful way of taking the grievances in this Court rather than making the agitation and kicking the dust on the streets and thereby risking the peace and security of the State.

2.Notices of the petitions were issued by the Court inviting any member of the public to participate in the discussion and express his views on the questions involved in these petitions within the permissible limits. These public notices were not only published in the leading newspapers of the country but were also individually sent to the Juris-Consults and Islamic Scholars in the country. Notices were also served on the respondent Governments.

3.In response quite a number of Scholars appeared before us. Among the participants were not only Ulemas, religious scholars, but also notable lawyers of the country enjoying position of credibility and respect in the legal profession. That more and still better Ulemas and scholars did not turn up to express their views is a pity, that the few that offered their assistance is to their credit. After benefitting from their opinions 2nd after hearing the Juris-Consults at Islamabad, Lahore and Karachi we have now to dispose of these petitions within the perimeters prescribed for exercise of our jurisdiction in the Constitution. We had observed and cautioned during the hearings and have to repeat it now that the jurisdiction of the Federal Shariat Court to examine any law, custom or usage having the force of law on the touchstone of its repugnancy to Holy Quran and Sunnah is curtailed by Article 203-B, clause (c) which excludes "Constitution.", Muslim Personal Laws, a fiscal law and the law of procedure of any court from our scrutiny. For our purpose law has been defined as follows:-

"(c) "Law" includes any custom or usage having the force of law but does not include the Constitution,.............

4.It is, therefore, evident that contentions pertaining to the structural frame-work of the legal system and subjects specifically provided for in the Constitution fall out of our jurisdictional limits and we are unable to grant any relief i n _ respect thereof.

5.It was argued that the Objective Resolution is a Supra Constitutional provision and its insertion in the body of the Constitution dissolves the bonds to exercise of power in the definition clause quoted above and thus makes the Constitutional provision also justiciable before us. Whether this Resolution now forming a part of the Constitution would remove the embargo provided in clause (c) of Article 203-B of the Constitution is doubtful and whether this Resolution occupying a place in the introductory chapter of the Constitution is at all operative through A court is debatable. Further, this argument was advanced only by Mr. Rafique Ahmad Bajwa, Advocate, during his arguments in a casual manner. As no public notice was given on this question and this argument could not be examined in depth we leave the matter open.

6.In the end, we are left to deal with such laws or provisions of laws which are not a part of the Constitution and belong to the family of ordinary laws enacted in furtherance of the objects detailed in the Constitution. If these laws are found repugnant to the Holy Quran and Sunnah we have powers to strike them offand to suggest modifications to bring them in line with the concept of the Sharia without causing violence to the Constitutional restraint.

7.The laws relevant for our purpose in these petitions are the following

1.Representation of the People Act, 1976.

2.The Houses of the Parliament and Provincial Assemblies (Election) Order, 1977.

3.The Political Parties Act, 1962.

8.This judgment will, however, deal with the Representation of the People Act and the Houses of the Parliament and Provincial Assemblies (Election) Order and their several sections which the petitioners have challenged in the above noted petitions. Both these laws deal with the same subject matter. They can be dealt together.

9.It would now be pertinent to mention the gist of the long arguements addressed to us during the hearings of these petitions.

10.It was argued that the entire election compaign is mounted on the pattern of a carnival or a circus.

The first priority is self-projection by each candidate and the character assassination of the rival candidate.

Shrouded in a cloak of hypocricy and deceit, candidate chases the voters from door to door bragging and boasting and offering allurements, threats and false promises to bag as many votes as possible. He employs a force of paid workers and even foreign experts specially trained in the techniques of electionering.

Wide publicity is given to the candidacy through banners, posters and playcards. The caval--cade of Mercedies and Pajeros and trucks loaded with hired and paid "volunteers"roas around on the streets from Mohallah to Mohallah and village to village shouting slogans and winning support of the voters all at the instance and expense of the candidate himself. Parochial, sectarian, tribal and ether such prejudices are exploited to earn support. Sometimes large amount of money are paid to buy the votes. Bogus voting and impersonation is now a pass word at the polls. In the end, the one who played the game with higher stakes becomes the winner. How all this be contenanced by Sharia and how can a product thriving through such a firmament can be taken to be an " jj »T "

Trustee for the Muslim Ummah:- Turn not thy cheek in J j j y * i jjt) jji scorn toward folk, nor Orf* t>!«j Jjl I— U walk with pertness in |’iL> the land. L o ! Allah loveth not any braggart — Ijj y-i^j «ii~i■■>_ii boaster. (Sura 31:18)

And serve Allah: and jjl ascribe nothing as partner unto Him.(Show) kindness unto parents, and J j l v'-i* o'*° J jl jl-* - *- unto near kindred, and jjl orphans, and the needy, jljfc iijjj! jjl and unto the neighbour who is not of kin, and the 1 JJ1' InmA fellow-travelers and o-W <>•*«#) j - W * jjl wayfarer and (the slaves) J ^ J j' jj' ( u j J 'j whom your right hands possess. Lo! Allah loveth not such U>* O^-0 jAjl^-s^i *^jJ as are proud and boastful. I jj^ I - ■^ (Sura 4:36) , “ _ , J 0*V «jj j-S1^Jl J 0 ye, who believe! Be ljJlj0 l^t^l steadfast witnesses for j^M-»j* ^ j& S <sJ ^ L S ^ j ^1 ^ Allah in equity, and let not hatred of any people o“'>^ 0 $ S jJ jjl seduce you that ye deal not jUii ^ uLi j-oU justly. Deal justly, that is Jj S I S lJ I<aJj nearer to your duty. Observe your duty to Allah. Lo! Allah jj ' ^ is informed of what ye do. ^ ^ | {Sura ^:8) j J 1-*eI -**■*£ iSl a aJJl J j - j o-^ oW* -»j j! jJ Ail-" jjl f-k'J *-LJI

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11.It was argued that instead of curbing the tendency of hunting for office and getting it through means fair and foul, the Act encourages this behaviour. To add fuel to the fire spending huge amounts in elections has h-dem legalised and is called "Election expenses". In the result purse and propoganda prove to be strongest weapons to ensure success of black ^rketiers, narcotic dealers, black mailers. Men of integrity and piety cannot venture to participate in such a game. The entire mechanism and system is in ulter disregard to the injunctions of Islam.

12.Reference was made to an earlier case in which the late Mr, Justice 3.1. Kaikaus and others had raised same objectionS before the Federal Shariat Court as then constituted and some recommendations were made by the then Chairman of the Court in his Judgment reported in PLD 1981 TSC 1 (Mr. B.Z. Kaikaus Vs. Federal Government of Pakistan).

13.It would be profitable to quote a passage from the judgment of Salahuddin Ahmad, J., the Chairman of the Federal Shariat Court as he than was. Dealing with the Representation of the People Act No.LXXXV, the learned Judge observed:-

"There is, however, another aspect of the question that recudres consideration. The Parliament should have kept in mind its obligations and restonsibility under the Constitution and the Injunctions of Islam " while exercising its discretion under

Articles 62(d), 63(1)(e) and 113 of the Constitution. These provisions provided a discretion to the Parliament to add to the qualifications and disqualifications of the Members of the Legislature. While enacting the Houses of Parliament and Provincial Assemblies (Elections) Order, 1973 and the Representation of the People Act, 1976, the Parliament failed to remember the aforesaid obligations and responsibilities under the Constitution and the Injunctions of Islam as will be seen presently.

The function of the National Assembly or Senate is to legislate. The Constitution provides the Principles of Policy. Under Article 29 of the Consitution it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles in so far as they relate to the functions of the organ or authority. Again under Article 30 it is the responsibility of an organ or of a person performing functions on behalf of an organ to decide whether any action by either complies with the Prinicples of Policy. Article 31 provides that steps shall be taken to enable the Muslims of Pakistan, individually and collectively to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled tc understand the meaning of life according to the Holy Qur'an and Sunnah."

14.After this judgment Constitutional amendment was made and Articles 6Z. 63 and 113 of the Constitution were substituted by P.0. No.14 of 1985 with effect from March 2 ; 1985. The qualifications and disqualifications of members of the Federal and Provincial Legislature were re-enacted. Article 62 and 63 of the Constituion new elaborately spell out the eligibility of candidates who can be allowed to contest

election for membership of the Houses of Parliament as well as Provincial Legislative Assemblies (vide Article 113 of the Consitution).

15.At this stage it would be proper to reproduce these Articles in extensio:-

"62. 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 National Assembly, not less than 25 years of age and is enrolled as a voter in any electoral role for election to a Muslim seat or a non-Muslim seat as the case may be in that Assemby;

(c)he is, in the case of Senate, not less than thirty years of age and is enrolled was 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 teachings 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 laoral reputation; and (i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoorta (Parliament)

63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Majlis-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 foreign State; or (d) he holds an office of profit in the service of Pakistan ether than an office declared by law not to disqualify it holder; or

(e)he is in the service of any statutory body of nay body which is owned or controlled bv 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 (II of 1951), he is for the time being disqualified under any law enforce 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 cf 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

(h)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 form 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 yeqrs has elapsed since his removal or compulsory retirement: cr

(k)he has been in the service of Pakistan or 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 in such service: or

(l)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: cr

(m)he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or (n) he, whether by himself or by any person or body of persons in trust for him or for his benefit or cm his account or as a member of 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 -

(1)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 devloved 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 (XLV1I of 1984), of which he is a share­ holder 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 not 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 an office of profit in the service of Pakistan other than the following offices, namely

(i)an office which is not whole time office renumerated 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 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 ceased to be a member and his seat shall become vacant.

Art.113. The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to "National Assembly" were a reference to "Provincial Assembly."

16.These qualifications and disqualifications for membership have also been repeated in Articles 10 and 11 of the Houses of the Parliament and Provincial Assmeblies (Elections) Order, 1977, President (Post- Proclamation) Order No.5 of 1977 and section 99 of the Representation of the People Act, 1976.

17.Much emphasis was laid by the petitioners on the opening words of Article 62 of the Constitution " A

PERSON SHALL NOT BE QUALIFIED TO BE ELECTED OR CHOSEN

UNLESS” :-

(a)............

(b)......................

(c ) .............................

(d)he is of good character and is not commonly known as one who violates Islamic Injunctions;

(e)he has adequate knowledge of Islamic teachings anc practises obligatory- duties prescribed by Islam as well as abstains fren 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 coutry or opposed the Ideology of Pakistan;"

18.It was argued that the member of the Shoora should and must possess these attributes. Failure to prove that he carries all these attributes ( in a superior or inferior degree) would cut him down at the first step and the question of his becoming a potent contender for the seat at the poll should be ruled out.

19.The thrust of the argument was that Representation of the People Act and the Houses of Parliament and Provincial Assemblies (Elections) Order fail to provide any forum at any stage to carry into effect the mandatory requirements of Articles 62, 63 and 113 of the Constitution. This failure has reduced these articles to a dead letter and paved the way for undesirable persons to reach the Shura.An assembly of persons constituted in total disregard to Ayat 58 of Sura Al-Nisa and without implementing the requirement of Articles 62 and 63 is apt to become something like » jlj » It cannot rank " Shura as visualised by Islam.

Members devoid of the qualities desired by Sharia and to a large measure embodied in Articles 62 and 63 may have any out look of life and may cherish the values of any other system by surely would not come up to the standard set by the Sharia. Read the whole Act cover to cover but not a single provision is found where the screening of candidates would be possible or is permissible.

20.It was contended that even if the Articles 62 and 63 of the Constitution are read with section 14 of the Representation of the People Act, it would not make any difference. Actually the subject matter contained in the two provisions has no nexus with each other.

21.Reliance was placed by the petitioners on the following Ayats and Hadith of the Holy Prophet in support of the contention that trust should be reposed only in those who qualify to hold it. Ambitious and selfish aspirants of office ( ^ 3 * * ) should be shunned of and only those who are noble and worthy of the office should be chosen:- "Allah doth command iS |Ojj 1J> you to render back your Trusts. To those to whome they are due:

And when ye judge between man and man, That ye judge with justice;

»*■ -I

Verily how excellent Is the traching which He giveth youi

1-.a. C.j jj | | ~ i'ii.i I For Allah is He who heareth And seeth all things,

(Sura Al-Nisa:58)

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22.The consequences of clothing people of questionable integrity with an elective office are described in the following Hadith of the Holy Prophet (S.A.S):- j j y p-Lj JLuL *_Lll ^-Ls ^ ) o** _iT i j£ I ^£-il |j_ieoJI-»u-1 — 0 Wi* IwU jj ^ yiT —,jS . Ia »>r> jj I 1-=>Tu-t— k£\jb> j-j ,ju\ \jj j S j 11^1~iI y-* hS^ 1^ ' —**■'ICjJj Jal lw I—J1-0jJ ^ wT _L£j* I £^1-* U c t i U - i b-. .i LS^**L*i y- < 1-*^

(11*0° ‘Jj' ‘

Article 14 of the Representation of the people Act was also referred and it was argued that if anything this provision makes a negative contribution in the implementation of Articles 62 and 63. This article titled as "scrutiny" instead of inviting people to come and assist the Returning Officer in the determination of the qualifications of candidate specifically debars them from coming and giving " Moreover, the nature of inquiry at the scrutiny proceedings is merely summary, confined only to the question of security deposit.under section 13 and few other insignificant conditions*mentioned in section 12. Section 14 may be reproduced below:- "14. Scrutiny.-- (1) The candidate, their election agents, proposers and seconders and one other person authorised in this behalf of each candidate, may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 12.

(2)The Returning Officer shall,

in the presence of the persons attending the scrutiny under sub-section(l), examine the nomination papers and decide any objection raised by /any such person to any nomination.

(3)The Returning Officer may,

either of his own motion or upon any direction, conduct such summary enquiry as he may think fit and may reject nomination papers if he is satisfied that:-

(a)the candidate is not qualified to be elected as a member:

(b)the proposer or the seconder is not qualified to subscribe to the nomination paper (Added by Ord.XIV of

(c)any provision of section 12 or section

(d)- r%

13 has not been complied with; or the signature of the proposer or the seconder is not genuine(Added by Ord.

Provided that— (i) XIV of 1988).

The rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomina­ tion paper;

(ii)the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate (his proposer or seconder) (Subs.by Ord.XIV of 1988); and

(iii)the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, but shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect.

(4)The Returning Officer shall endorse on each nomination oaper his decision accepting or rejecting it and shall, in the case of rejection, record brief reasons therefor.

(5)An appeal against the decision of the Returning Officer tinder sub-section (4) shall lie to the Commissioner,(to a judge of a High Court nominated by the Commissioner after consultation with ) (Subs, by Ord.XIV of 1988) the Chief Justice of the High Court, and shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final and

(6)An appeal not disposed of within the period specified in sub-section (5) shall be deemed to have been rejected.

(7)Announcement of the day and time appointed for the hearing of an appeal under sub-section (5) over the radio or Television or by publication in the press shall be deemed to be sufficient notice of the day and time so appointed.

2A* To prevent any Muslim from appearing and giving Shahadat at the scrutiny stage is depriving him of his valuable right of expressing his frank opinion about every candidate who would represent the constituency for a term of five years To shut the door for any Muslim at such an inquiry would also amount to violation of the injunctions of the Holy Quran and the Sunnah:-

"0 ye who believe! 1.4 ^ >1 I|A> j jJlj » i| Be steadfast witnesses for Allah y -t IT*'J* in equity, and let O'* ^ JJ* JA not hatred of any ■.ll«i'»l i—i 3jl_*1 j—io L people seduce you 1ST* jj£ i jj that ye deal not justly. Deal justly that is 1«*» sS jS» nearer to your duty. Observe your IJ ^Mf 1 duty to Allah. LoJ Allah is informed of what ye do."(Sura 5:8)

"0 ye who believe! + j_,i —91 '»1 I jJl j Be ye staunch in justice witnesses I-*> jj' for Allah, Even jyI 5I t jJ though it be ^ o'1— *'» ojj' J JJ* o'-* against yourselves or (your) parents >- ^ ^ 1 jS l 1y t or (your) kindered, ^ y, , ^ L£0 I brother, (the case , u j *.yk> ao j S- Joe L . j S- , i^ be of) a rich man or a poor man, for ^ ^ jSl Allah is nearer 1•*> ^ unto both (than ye - £ 7 t c_ao j 0 y * LS , are). So follow not passion lest ye

lapsed (from truth)

and if ye lapse or fall away, then lo! Allah

is ever informed of

what ye do." (Sura 4:135).

Hide not testimony .

t !- ^ •"■ - y S ■- ■•’I ^ He who hideth it, LJT .a% y £ ^ I y > v

verily his heart is sinful. jjl jlS ^ S IS J j #j

■—KM | I J>

Allah is aware of what ye — Iy do." (Sura 2:283).

"Confound not truth jjL ilj ^ yS jjl with falsehood, nor j W*? j* o'-* jj ' knowingly conceal

the truth" (Sura 2:42).

25.We have no hesitation in saying that section 14 of the Representation of the People Act not providing proper forum and facility for a meaningful investigation of qualification of a candidate and excluding the elector/voter from the scrutiny proceedings is repugnant to the Holy Quran and the Sunnah of the Holy Prophet

(P.B.U.H).

26.Finally it was urged that the Act gives clearance to unqualified persons to surface up at the stage of the general poll where the short question before the electorate of the area (couple of lacs or more people) is which one of the lot or none of them would be more useful to him or her if he is returned a® the poll. Who can deny that looking to the educational and social conditions of the society to which the voter belongs and whose only qualification is that he has lived in this world for 18 or more than 18 years would base his judgment on something other than his personal likes and dislikes or would make a honest

choice under pulls and pressure brought on his opinion by money and propaganda used in the compaign. Moreover the ordinary vo<ter has neither the time nor the means to gather relevant data about the eligibility of all the candidates contesting for the seat. It would be absurd to say that a teen ager in the system of adult franchise belonging to a diseased society where rate of readership is meagre and rate of literacy is hardly^ 5^ can be a substitute for a highly qualified forum capable of investigating complex questions on the basis of positive evidence relating to qualities and attributes possessed by an aspirant for Shura.

27.In this connection the practice followed by Hazrat Umer at the time of his death was cited.

Shortly before his death, it is so reported, the Caliph made out list of six persons who enjoyed a reputation of unimpeachable piety and integrity and were adjudged to possess fundamental qualifications for " ojl— »l " to the fullest measure. The Khalifa was to be chosen from this panel. He then directed that these names should be discussed before the general public and opinion poll should be obtained. ‘ In this way he wanted to knew which of the six proposed imeumbents, none of whom suffered any disability was more popular among the common folk.

It would not be without interest to reproduce the eventin a little detail

Cont p/19

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The incident would show that the Caliph did not leave the question of investigation of basic and fundamental qualifications to the common voter.

28, The spirit of Quranic Injunctions quoted above has to a large measure been accommodated in Articles 62 and 63 of the Constitution, as well as Secticm 99 .of the Act itself.

2'9“ It was vehemently contended that importing the Quranic Injunction in the Constitution but turning a blind eye to the Quranic Injunction as well as to Constitutional provisions in implementing them through the Act is a cruel joke with the Ummah and the Sharia. The Basic philosophy of the formation of the Shura is to find out the best and most pious of men among the Ummah who can act as Ulul Amr or become advisers to the Ulul Amr.

The literal meaning of the word Shura is "drawing honey from honey comb". How can a honey comb infested by mites and ftiaggots yeild invigorating honey.

It is essential that members of Shura are screened at the stage of scrutiny and only those found fit are ' brought to the. Chamber of the Shura. The Shura should

be a talent pool consisting of people worthy of the trust placed in them by 2 or 3 lacs members of the Ummah.

30% As the Constitution has already provided these qualifications for eligibility of the candidate for the Shura and left the methodology for implementing these provisions to the legislature, the Act should be so amended as to make it meaningful by giving . ;

effect to the requirements of the Constitution.A: .Screening Committee or a Tribunal of Notables consisting of retired of serving Judges of the Superior Courts, Educationists from Universities and Islamic Scholars, should be constituted to first investigate each case by examining the merits of each candidate in an open Court. Any one who wishes to give evidence and assist the Tribunal/ Screening Committee should not be prevented from doing so '.2 1* The petitioners' other attack was on section 52 of the Representation of the People Act 1976, which is as follows

"52. Election Petition...(1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner)"....

(.2) An election petition shall be presented to the Commissioner within sixty days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any Branch of the National Bank or at a Treasury or sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand . rupees."

32.It was contended that here again the real spirit of Islamic thought is killed and the pheonix of western political thought is reared up. The elected candidate is supposed to represent the voters. The voters have placed their trust in him and as a trustee he must

remain answerable to each person who has reposed trust in him. But this section pitches him against his rival who alone can file an election petition. The member of the constituency cannot file an election petition. Why the electorate whose agent or trustee the member claims (&fc to^have been denied any role and are debarred from raising their voice in relation to election results.

33.It appears that from beginning to end it is a combat between two political animals and the entire mass of voters are mere bye standers to announce at the end of the fight which one of the combatants is the winner and which the looser. This defeats the very purpose for which the whole exercise is undertaken. The relationship of trust and trustee principal and agent is degenerated into personal fight between two individuals.

34.It was contended that everyone should have a right to come forward and expose a dishonest or undesirable candidate who may have succeeded by adopting unfair means. Smart and resourceful winner would have little difficulty in preventing the defeated candidate from going to Court and thus outwitting 3 lacs voters of the constituancy. Why such a person should be allowed to perpetuate himself over an unwilling electorate.

35.It is, therefore, necessary that section 52 of the Representation of the People Act, 1976 should be so amended as to allow full opportunity to all the voters at whose ticket the candidate would reach the chamber of the Parliament. The candidate may or may not object to the election and may or may not file a petition.

It is the right of the voter to ensure that he is Cont'd___ P/20

represented by an honest man who has won the election by honest means and not through bogus voting or unfair means or by collusion with the opponents. In the absence of this right conceded to each voters .this', section, is held to be repugnant to the Holy Quran and Sunnah.

$6 •. The other leg of this argument was that the member of the Shura enjoying the position of the Trustee of the voters who have sent him up should be constantly under watch of the electorate and accountable to them for every action. Any time the member faulters any voter - should be able to pull him up and ask ft for his explanation. This, would be a deterrent to unscrupulous and adventurous members of the Shura and a warning to all to walk all the time with measured steps.

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37.In our opinion it is highly desireable that the screening committee or Election Commission should be given powers to entertain any complaint by any member of the contituency or any other person who may want to bring on record any malpractice or instance of unethical conduct committed by the member of Shura. If the charges are proved to be true the committee should be given powers to disqualify the member and unseat the member from < the membership of the Shura.

38, The next serious objection was to the bunch of sections 48, 49, 50 and 51 under Chapter VI of the Representation of the People Act pertaining to "Election Expenses" and section 13 of the Act relating to deposit. The objection was two fold. Firstly it was contended that section 49 clause (2) pastulates "No person other than the candidate shall incur any election expenses of such candidates'.' Now a group of person or a political party putting up a candidate in the larger interest of the community, is prevented from incurring any expense. This consideration apart^frora the Shariat point of view.

nothing can be more detestable than a person spending money to acquire an office j— iii Why should an honest and selfless man spend money at all? Only a selfish job­ hunter would put at stake as much as five hundred thousand if he has an appetite for a seat in the National Assembly and three hundred thousand if he is content with a seat in the Provincial Assembly. It is not difficult to visualise that a seeker of ready to spend this huge amount to cut his way through to a seat of Authority must carry many ambitionst Greed and ambition would be nearer to his heart than any feeling for service to humanity or public good. After his election his first concern would be to recoupe the losses that he has suffered during the election compaign. It is ' highly repugnant to Sharia that the public office should be allowed to be bargained not on the criterion of piety and purity of soul but on the basis of money and resources.

33.If a candidate is allowed to influence the judgment of the electorate on the strength of money and to buy their or allegence through his wealth, may a poor man who/be thousand times better in piety and but is handicapped because he cannot set up an apparatus as effective as his rival would never be able to fulfill his urge to serve his people in the Shura.

"4Q. In our opinion section 49 is repugnant to Sharia and directly in conflict with the following verses:- "Give theMkinsmannhis .due, . jjl jjl" and the needy, and the wayfarer, and squander not (thy wealth) J 1-0 'g * ^ j j l in wantonness."

"Lo! the squanderers were j tS ever brothers of the devils, and the devil was ever an ingrate to his Lord."

(Surah 17 : 26,27 )

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41.We may venture to suggest that a provision should be made whereby those who have cleared the screening process should be introduced to the electorate by the Election Commission through the electronic media and where it is not possible through other means. Time should be allocated for each candidate and through panel discussion between supporters/promoters of each candidate,.the candidate should be introduced to the

voters. Each candidate should also be provided an opportunity to appear and address the voters of his constituency on the T.V.or where not possible in public meetings arranged by the Election Commission.

42 . Restricted publicity through posters may also be allowed to supporters. The posters etc. issued on behalf of supporters should only comment on qualification and virtues of the candidate whom they have nominated for the Assembly. No character assasination of other candidate should be permitted at this stage because the candidate has already been cleared by the screening committee. If there is any blot on the character of the rival candidate it should first be proved before the screening committee etc. and not published in the press.

43* Another objection related to sub-clause (k) of Clause 1(A) of Section 99 of the Act. It was argued that Shura should be composed of the cream of the nation. Men of wisdom and men of ripe experience should be hunted out from every segment of society and brought to the Shura. They are ^IjJI J*'of the Umma. But what could be a qualification has been treated as disqualification in sub-clause (k) of Clause 1(a ) of Section 99 of Representation of the People Act or its equivalent in sub-clause (4) of clause 2 of Section 10 of the Houses of Parliament and Provincial Assemblies Order, 1977. This provision is reproduced below for ready reference:-

" (k) he has been in the service of pakistan or of any statutory body or any body which is v~ owned or controlled by the Government or in y which the Government has a controlling share V\ or interest, unless a period of two years has elapsed since he ceased to be in such services".

44 • it was argued that retired judges of the Superior Courts, Professors of the Universities and other honest and experienced retired Government servants .having served

in the Foreign Office or in Foreign Mission are disqualified at least for two years after their retirement. The best time when such a person could employ his attributes and talent bv becoming a to s it member of the Shura is subjected to forceQhibernation and.Trade/ in seclusion at home. During the 2 years all the sharpness of intellect and understanding would be rusted and blunted. We can find no wisdom in treating such a mature and articulated person to be unfit for membership of Shura. Unfortunately we can do no more than to express our opinion against it. We cannot strike out this provision because it is also given as one of the disqualification in clause *K' of Article 63 of the Constitution which is beyond our reach.

45.Bunch of sections regarding secrecy of ballot particularly section ,88 and 89 providing for secrecy of the ballot were also challenged as repugnant to Quran and Sunnah. To vote for a person is to give (Shahadat) and Muslim should be bold enough to give true Shahadat without fear cr favour. Such was the line of argument of the objectors. In this connection Ayat 135 of Sura Nisa (4:135) was also quoted:- "O ye who believe! Be ye staunch o'-*-*1' ^ in justice, witnesses for Allah, ., “ , . . tl -US \-x> jjl y u even though it be against yourselves or (your) parents or (your) hindered, o-' whether (the case be of ) a rich man 0L, L-, I or a poor man, for Allah is nearer . . . . i—s jjji j aii—j jji wi—< unto both (than ye are). So follow not passion lest ye lapse or fall ^ ^ away, then lo! Allah is ever lai ^ ^ informed of what ve do. ^ J ^ \ y> ^ j-*> LS

L_i jj cijLftji j Iua_i_i j ai> J jS-i> ^ j .?

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It should,however be noted that the bunch of sections are in furtherance of the legislative intent expressed in Article 226 of the Constitution which postulates

Article 226 "All elections under the Constitution shall be/secret ballot".

47- Moreover it is difficult to say that to qualify enjoyment of a right with a rule of prudence would be violative of the right itself. The sections merely prescribe procedure for exercising the right of vote. The sectionffor secrecy of ballot may, therefore, be retained. But it should be kept in mind that right of franchise is a valuable right, the form or procedure regulating the exercise of right should not be allowed to kill the right itself. Consequently if a voter' has inadvertently failed to observe strict rules of secrecy he should not be defranchised and his vote should not be declared invalid.

45.The upshot of the above discussion is that Sections 13,14,49,50, 52,--------- — ------------- - of Representation of the People Act are against the Ouran and Sunnah. Sections S6 & 39 providing' for secrecy-p may be retained. But Section 38 {4) (c) (ii> excluding from the count an . secracv repugnant to ruran.and Surujah ^.4s13 otherwise valid vote merely because' 1 voter has disregarded- the rule of / The Representation of the People Act,1376 and the Houses t of the Parliament and Provincial Assemblies (Election) Order, 1977 should accordingly be amended by the President of Pakistan by 31-12-89. Sections i3, *-4,49,50, 52 and 38(4) (c) <ii) cease to have effect after 31-12-1989. si at Yar Khan.^r

Gul Mohammmad Khan,C.J Syed jShujaat jfli Qadri.J Muftakhiruddin J. Fida Muhammad Khan J.