IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
Mr. Justice Mohammad Moosa Khan Leghari
Mr. Justice Syed Sakhi Hussain Bukhari
Mr. Justice Sheikh Hakim Ali

CIVIL PETITION NOS. 778-779 of 2008

(On appeal from the judgment/order dated
23.6.2008 of the Lahore High Court, Lahore, passed
in W.P. Nos.6468 and 6469 of 2008)
---------------------------

Federation of Pakistan Petitioner in all cases

Versus

Mian Muhammad Nawaz Sharif and others Respondents

-------------------------

For the petitioners Agha Tariq Mehmood, DAG

a/w Ch. Arshad Ali, AOR

On Court Call: Sardar Latif Khan Khosa, Attorney General for

Pakistan

For respondents1-5: Nemo

For respondent-6: Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC

Dr. Mohyuddin Qazi, ASC
------------------:-------------------

CMAs 63 AND 1674 /2008 in CP NO.NIL/2008

Shakeel Baig Petitioner

Versus

Noor Ellahi and others Respondents

-------------------------------

For the petitioner: Mr. A. K. Dogar, Sr. ASC

Mr. Arshad Ali Chaudhry, AOR

For respondent No.1: Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC
Dr. Mohyuddin Qazi, ASC

For respondents 2 to 5: Nemo.

For respondent No.6: Agha Tariq Mahmood, DAG

-----------------:-----------------
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CP 778/2008 etc

CMAs 64 AND 1675/2008 in CP No. Nil/2008

Mehr Zafar Iqbal Petitioner

Versus
Syed Khurram Shah and others Respondents
-------------------------

For the petitioner: Mr. Muhammad Akram Sheikh, Sr. ASC

Mr. Arshad Ali Chaudhry, AOR

For respondent No.1: Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC

For respondents 2 to 5: Nemo.

For respondent No.6: Agha Tariq Mahmood, DAG

-------------------------

Dates of hearing: 6, 14, 15, 19 to 22, 27 to 30 January, 2nd to

4th, 9th to 12th, 16th to 20th, 23 to 25th
February 2009.
-------------------------------

JUDGMENT
SHEIKH HAKIM ALI, J.- To contest a seat of National

Assembly, in the By-election for the constituency of NA 123,

Lahore-VI, to be held on 26.6.2008, Mian Muhammad Nawaz

Sharif had filed Nomination Papers, out of which one was

proposed by Mehr Zafar Iqbal and it was seconded by Shakeel

Baig. Noor Ellahi, respondent No.6 and Mian Ikhlaq Ahmed alias

Guddu, were the contestants of that election from that

constituency. Nomination papers were submitted before the

Returning Officer, who took up the task of scrutiny of these

nomination papers. Nomination paper of Mian Muhammad

Nawaz Sharif, the candidate was accepted on 15.5.2008,

although Noor Ellahi and Mian Ikhlaq Ahmed alias Guddu, the

opposing candidates had objected to the acceptance of this

nomination paper of Mian Muhammad Nawaz Sharif. The grounds

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pleaded for rejection of nomination papers of Mian Muhammad

Nawaz Sharif can be summarized in the following form: -

(i) Mian Muhammad Nawaz Sharif was convicted by

Anti-Terrorism Court No.I, Karachi, on 30.10.2000 in
Special Case No.385 of 1999 under section 402-B of
the PPC read with section 7 of the Anti Terrorism Act,
1997, which conviction was also upheld by the
learned appellate court (High Court of Sindh vide
judgment reported in PLD 2002 Karachi 152
(Muhammad Nawaz Sharif v. The State). In the
aforesaid case Mian Muhammad Nawaz Sharif was
sentenced to life imprisonment and was imposed a
fine of Rs.5,00,000/-, in default whereof he was to
further undergo 5 years imprisonment, on the first
count and similar sentence on the second;
(ii) Mian Muhammad Nawaz Sharif was also convicted
and sentenced by learned Accountability Court,
Attock Fort, in Reference No.2 of 2000 on 22.7.2000,
under section 10 read with section 9-A(V) of the NAB
Ordinance. He was sentenced to 14 years R.I. and fine
of Rs.20 million. In case of non-payment of fine, he
was to suffer R.I. for further imprisonment of three
years. He was also declared disqualified for 21 years
seeking from being elected, chosen, appointed as
member or representative of any public office or any
authority of the Local Government of Pakistan;
(iii) Under Article 45 of the Constitution of the Islamic
Republic of Pakistan,1973, (which would be noted as
the “Constitution hereinafter in the judgment)
although sentences were pardoned by the President
of Pakistan yet conviction was still intact and
effective and having not been set aside by any
competent higher/appellate court, conviction and
disqualification would remain in existence.
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(iv) Respondent No.1, Mian Muhammad Nawaz Sharif

was not a sagacious, righteous and non-profligate and
honest and ameen person, because he was convicted
by the learned Accountability Court, Attock Fort under
section 9-A(V) in Reference No.2 of 2000 dated
22.7.2000 and under section 10 of the NAB
Ordinance, 1999 for dishonesty, corruption and
corrupt practices, misappropriation of public funds
and misuse/abuse of authority, etc.
(v) Respondent No.1 is publicly propagating his biased
opinion, and acting in a manner, prejudicial to the
integrity of the Judiciary of Pakistan and defaming
and bringing into ridicule the judiciary as well as the
Armed Forces of Pakistan.
(vi) In his application addressed to the Chief Election
Commissioner of Pakistan dated 7.12.2007, against
the rejection of his nomination papers from NA-120,
in the General Election, held on 18.2.2008, he had
clearly mentioned in that application that the Judges
of the High Court who had taken oath under the PCO,
and whose status as such was seriously flawed, he
was not acknowledging the appointment of aforesaid
judges. He was also maligning the Hon’ble Judges,
who had taken oath under the Constitution and
undermining their authority and integrity, and thereby
trying to divide the judiciary.
(vii) Respondent No.1 after conviction, in order to avoid
criminal liabilities for his misdeeds and heinous
crimes, malafidely and through deceitful means
entered into a compromise, for agreeing to 10 years
exile in exchange of his release, which agreement
was firstly kept on denying with regard to its period of
10 years but when the document was placed before
the Hon’ble Supreme Court of Pakistan and a public
press conference was held by Mr. Saad Al-Hariri, a son
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of former Lebanese Prime Minister Rafique Hariri and

the Saudi Intelligence Chief, Mian Muhammad Nawaz
Sharif admitted the execution and the exile deal, thus
he was disqualified from being elected, as he had
committed non-fulfillment of obligation, in breach of
that agreement, which act of his was against the
Injunctions of Islam which required a person to fulfill
all his obligations.
(viii) Mian Muhammad Nawaz Sharif was a defaulter of
consortium of National Bank of Pakistan, Habib Bank
Limited, United Bank Limited, Agricultural
Development Bank of Pakistan, Muslim Commercial
Bank, PICIC, Bank of Punjab and the first Punjab
Mudarba and cases for recovery of loans were
pending before the Lahore High Court, Lahore. It was
further alleged that he was disqualified for having
embezzled millions of valuable public money
belonging to the poor citizens of Pakistan. He had
committed the breach of contract and was not
entitled to reap the fruits of his deceitful means and
retain ill-gotten gains.
(ix) Nomination papers of respondent No.1 were even
otherwise liable to be rejected as having been filed in
complete disregard of law and containing incorrect
declaration.
(x) Earlier nomination papers filed by Mian Muhammad
Nawaz Sharif for the seat of NA-120 in the present
General Elections were rejected by the Returning
Officer, against which no appeal was filed by him, so,
it had attained finality and respondent No.1 could not
contest the same election in its by-election, on the
principle of constructive resjudicata and estoppel.
(xi) By-election being in continuation of General Elections,
rejection of nomination paper in the General Elections
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CP 778/2008 etc

having attained finality, the present nomination in

this by-election was liable to be rejected.

2. Noor Ellahi had submitted a hand-written application in the

shape of objections, against the nomination papers of Mian

Muhammad Nawaz Sharif before the Returning Officer on

13.5.2008 alongwith affidavit.

3. Many other grounds were allegedly, as per learned counsel

raised before the Returning Officer. But the Returning Officer had

accepted the nomination papers of Mian Muhammad Nawaz

Sharif. So, Mian Muhammad Ikhlaq Ahmed alias Guddu filed

Election appeal No.6-A of 2008, before the learned Election

Tribunal, Lahore consisting of two learned judges of High Court

on 24.5.2008. When notices were issued to respondent in that

appeal for 27.5.2008, an application under Order I Rule 10 of the

CPC was filed by Noor Ellahi seeking his impleadment in

aforementioned appeal but on that date, Mian Muhammad Ikhlaq

Ahmed alias Guddu, withdrew his appeal allegedly due to political

pressure. In these circumstances the learned Election Tribunal

directed Noor Ellahi to file an independent appeal, if so desired,

which was filed by him and notices were issued to respondents

for appearance in that appeal. Syed Khurrum Shah filed a petition

under section 14 subsection (5-A) of the Representation of the

People Act, 1976 (hereinafter referred to as the “Act”), against

Mian Muhammad Nawaz Sharif in respect of his disqualifications,

before the learned Election Tribunal. It is noteworthy that Mian

Muhammad Nawaz Sharif did not appear in the aforesaid Election

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CP 778/2008 etc

Appeal and petition and so was proceeded exparte. On

30.5.2008, Mr. Justice Muhammad Akram Qureshi, one of the

learned Member of the Election Tribunal, accepted election

appeal No.26-A of 2008 and Mian Muhammad Nawaz Sharif was

declared to be disqualified to contest the election as his

nomination papers were rejected. But the other learned member,

Mr. Justice Hafiz Tariq Naseem, however, dismissed the appeal

against Mian Muhammad Nawaz Sharif upholding the order of

Returning Officer.

4. It is material to mention that Noor Ellahi had filed

appeal/application under section 14(5) read with subsection (5-A)

of the Act read with Rule 5 of Representation of the People

(Conduct of Election) Rules, 1977 against the order dated

15.5.2008 passed by Returning Officer-respondent No.2.

5. As there was a split decision between the learned members

of the Election Tribunal, so the matter was referred to Chief

Election Commissioner of Pakistan, upon which the Chief Election

Commissioner passed the following order on 1.6.2008, which is

reproduced hereinbelow: -

“The proposal highlighted in para-18/ante is approved as it is squarely in

line with the mandatory provision of section 14(6) of the Representation
of the People Act, 1976 that an appeal not disposed of within the period
specified in the Election Schedule shall be deemed to have been rejected.
It is scarcely necessary to mention that according to the Election
Schedule notified on 7th May, 2008 the last date for deciding appeals
against the acceptance or rejection of Nomination Papers by the
appellate Tribunal was 31st May, 2008”.

6. Aggrieved from this order, and all the other orders, Writ

Petition No.6468 of 2008 was filed by Noor Ellahi, the candidate,

while Writ Petition No.6469 of 2008 was filed by Syed Khurrum

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CP 778/2008 etc

Shah, against Mian Muhammad Nawaz Sharif in the Lahore High

Court, Lahore as his application under section 14(5-A) of the Act,

was not decided by the learned Election Tribunal.

7. During the pendency of both these writ petitions, a flood of

applications under Order I Rule 10 of the CPC were filed before

the Lahore High Court, Lahore, the details of which are as under: -

In Writ Petition No.6468 of 2008: -

C.M. No.1305 of 2008 by Shakeel Baig,

C.M. No.1306 of 2008 by Mr. A.K. Dogar, learned Advocate,

on his own account.
C.M. No.1307 of 2008 by Mujtaba Shaju-ur-Rehman,
Secretary General, City Lahore PML (N),
C.M. No.1308 of 2008 by Marghoob Ahmed, President, PML
(N), Lahore,

C.M. No.1309 of 2008 by Mehr Zafar Iqbal, the proposer,

C.M. No.1310 of 2008 by Khawaja Mehmood, President,
PML (N), Lawyers Forum.
C.M. No.1317 of 2008 by Judicial Activist Penal of Pakistan.
While in Writ Petition No.6469 of 2008:-

C.M. No.1311 of 2008 by Shakeel Baig,

C.M. No.1312 of 2008 by Mr. A.K. Dogar, learned Advocate

on his own,
C.M. No.1318 of 2008 by Marghoob Ahmed, President PML
(N), Lahore,

C.M. No.1314 of 2008 by Mujtaba Shuja-ur-Rehman,

Secretary General, City Lahore, PML (N).
C.M. 1315 of 2008 by Khawaja Mehmood President PML
(N) Lawyers Wing.

8. Upon all these applications, learned Full Bench of Lahore

High Court, Lahore, passed orders dismissing all applications

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CP 778/2008 etc

holding that the applicants had no locus standi to file these

applications. This order was announced on 20.6.2008.

9. Aggrieved from that order dated 20.6.2008, Mehr Zafar

Iqbal had filed Civil Petition for Leave to Appeal No.Nil of 2008 in

this Court alongwith a CM for grant of a period, to produce the

impugned order, but on 25.6.2008 the C.M. was got dismissed as

not pressed.

10. Before the learned Full Bench which was seized of main writ

petitions and which were still not decided finally, C.M. Nos.1379

of 2008, CM 1380, 1382 to 1385 of 2008 (review petitions

against order dated 20.6.2008) were filed and C.M. No.1381 of

2008 by one Wali Muhammad seeking permission to be

impleaded as party to the writ petition was filed. All the CMs

alongwith C.M. Nos.1305 to 1310 and 1317 of 2008 were

dismissed. Learned Full Bench of the Lahore High Court vide its

judgment/order dated 23.6.2008 disqualified respondent No.1

(Mian Muhammad Nawaz Sharif) for 21 years on the basis of

judgment dated 22.7.2000 of the Accountability Court; for

scandalizing, abusing, disobeying and ridiculing the judiciary of

Pakistan, and having sworn a false affidavit attached with the

nomination papers. Consequently, order of Returning Officer

dated 15.5.2008, order dated 31.5.2008 of the learned Election

Tribunal and observation/order dated 1.6.2008 of the learned

Chief Election Commissioner were set aside.

11. Aggrieved from that judgment/order dated 23.6.2008,

passed by learned Full Bench of Lahore High Court, Lahore,

Federation of Pakistan filed two CPLAs No.778 of 2008 and 779

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CP 778/2008 etc

of 2008 in this Court. During the pendency of these petitions C.M.

No.1914 of 2008 by Manzoor Ahmed Bhatti, and C.M. No.408 of

2009, by Shahid Orakzai, were filed for impleadment.

12. It is noteworthy that both learned counsel, Mr. A.K. Dogar,

and Mr. Muhammad Akram Sheikh had filed applications on

their own account, for impleadment before the learned Full Bench

of Lahore High Court but those were dismissed by that Court. At

present, they are appearing as counsel for Mehr Zafar Iqbal and

Shakeel Baig, in this Court.

13. The gist of arguments addressed by all the learned counsel,

requiring verdict from this Court is being formulated in the

following form: -

(1) Recusal;
(2) PCO Judges;
(3) Bias;
(4) Locus standi of petitioners;
(5) Application under Order I Rule 10 CPC
(6) Constitution of Larger Bench and hearing
from Selective Judges;

(7) Qualification and Disqualification:-

(i) Convictions;
(ii) Twenty One Years Disqualification;
(iii) Breached covenants;
(iv) Unpaid Loans;
(v) Bank suits;
(vi) Propagating opinion against judiciary;
(vii) Pending contempt case – false declaration

(viii)Miscellaneous Application to C.E.C.

(ix) Unrefuted allegations.
(8) Interpretation of Section 14(5) and (5-A) of the
Act;
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CP 778/2008 etc

(9) Subsection (6) of Section 14 of the Act.

(10) Jurisdiction of the High Court;

(1) RECUSAL

14. Before embarking upon the discussion of factual and legal

plane of the case, it is essential to note that this highest Court

had made multifarious efforts to inform and serve Mian

Muhammad Nawaz Sharif, the candidate, with regard to the filing

of this case. Inspite of being apprised of the case, he has opted

not to appear and defend, apparently, perhaps due to reasons

best known to him towards this Court, which would be later

discussed in detail in this judgment at its appropriate place.

15. It is interesting to note that Mian Muhammad Nawaz Sharif,

in whole of the proceedings during the hearing of election

petitions, petition filed under section 14(5-A) of the Act, Writ

Petitions in the High Court and CPLAs, thereafter in this Court has

not appeared to defend his qualifications and disqualifications,

allegations and incriminating attributions, levelled against him by

his contesting candidates in the election. From the above noted

narration, an inference is easily deducible that Mian Muhammad

Nawaz Sharif has either got nothing to say in his defence or is shy

of and nervous to face the case and its consequence or does not

want to become a candidate, after the submission of nomination

papers in the by-election, otherwise he would have contested the

stigma of disqualification ascribed and attributed to him.

16. After the above narration of facts and arguments, we have

found that Shakeel Baig, the proposer and Mehr Zafar Iqbal, the

seconder have filed separate civil petitions for leave to appeal

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CP 778/2008 etc

while Federation of Pakistan has also filed two independent civil

petitions for leave to appeal against the impugned judgment

dated 23.6.2008 passed by the Lahore High Court, Lahore. The

Registrar office of this Court has not registered and allocated any

number to both these civil petitions of the proposer and seconder.

Meaning thereby that these civil petitions of Shakeel Baig and

Mehr Zafar Iqbal were not yet registered when two separate

applications by these petitioners were filed, one, praying for

entertainment of these civil petitions and the other for Recusal.

Instead of pressing for order to be passed by this Court, for

registration of their Civil Petitions, Shakeel Baig and Mehr Zafar

Iqbal, petitioners have much insisted upon the acceptance of their

applications for recusal. CMA No.63 of 2009 was filed by Mehr

Zafar Iqbal while CMA No.64/2009 was presented in the office by

Shakeel Baig. In both these petitions which are verbatim copy of

each other’s petition, it was asserted that on 3rd of November

2007, Martial Law, in the shape of emergency was imposed by

General Pervez Musharraf (now retired) who had suspended the

Constitution and the Judges sitting in the present Bench had

taken oath under the Oath of Office (Judges) Order 2007, while

many other Hon’ble Judges of this Court refused to take oath

under the said Order, due to which they had ceased to hold their

said respective offices, with the consequence that new

appointments to fill in the vacancies were made. It was further

asserted that petitioner as well as respondent No.1 (Mian

Muhammad Nawaz Sharif) who was a Quaid of a major political

party of the country Pakistan Muslim League (Nawaz Group) had

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CP 778/2008 etc

strong reservations to that act of General Pervez Musharraf. The

Judges, who have been appointed aftermath of the constitutional

deviation are required an adjudication regarding their holding of

the office as of Judge in the present proceedings, therefore,

necessity of constitution of a larger Bench of this Court was

essential. It was further alleged that there was possibility that

some prejudice might be occasioned in the case from the present

Judges, who had taken oath under the PCO. Founding their case,

upon legal Maxim, Nemo debet esse judex in propria sua causa

(no man can be a judge in his own cause) it has been argued that

bias was consequently to flow and result in their decision. In the

last, it was prayed that the present sitting Judges might recuse

themselves from these proceedings, by transmitting the case to

the Chief Justice for Constitution of the Appropriate Bench (words

were notable). When asked as to how the present sitting Judges

would feel prejudice against the present petitioners or their leader

when all the present sitting Judges of this apex Court have already

taken oath under the present Constitution of the Islamic Republic

of Pakistan, 1973, and they are constitutional judges, and more

so, particularly after the full Court judgment of this Court by seven

judges, as reported in PLD 2008 S.C. 178 (Tikka Iqbal

Muhammad v. Pervez Musharraf) and affirmed by 17 judges in

review, how then the present Judges can be called PCO Judges?

Mr. A.K. Dogar, learned counsel was also put a query from the

Bench as to whom these petitioners were considering the judges

of “Appropriate Bench”, learned counsel replied that four Judges

who were deposed in consequence of Proclamation of Emergency

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CP 778/2008 etc

and they were deposed thereafter but had taken oath under the

present Constitution might be considered the Judges appropriate

for the Bench.

17. This argument of petitioners’ learned counsel has been

found by us to be malicious and vicious, having no legs to stand

in the eye of law of the land. The petitioners and their counsel

have in fact tried to create division amongst the Hon'ble Judges

of this apex Court into two factions of PCO and non-PCO Judges,

although at present, all the sitting Judges are those Judges who

have taken oath under the present Constitution, and no

discrimination or distinction on this account can be made or

created amongst them by these petitioners.

18. In fact, it is a conspiracy of highest and gravest nature

which has been hatched up by some vested interests, to destroy

the whole judicial fabric of this highest judicial institution of this

country, for their own interest and purpose. It is being bred so as

to get appointed judges of their own choice and interest, in the

offices of judges of superior courts, by eliminating out the present

judges even whose impartiality and honesty might be above

board. This rule of politics, to divide and rule is being played and

brought into this realm of judicial institution, so as to cause

disturbance into peaceful, harmonious working and smooth

running of this Institution, by raising prejudices and differences

amongst the Judges, by procreating two factions in the judiciary,

which is most harmful and sinful act, plea, stand and stance of

the petitioners. All the Judges sitting in this Court are equal,

respectful and revered and brother Judges, amongst whom no

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CP 778/2008 etc

distinction and discrimination of belonging to one or the other

group can be allowed and permitted by any of the Judges of this

Court to be made and raised at this stage and thereafter. All the

Judges having taken oath under the present Constitution, a few of

them cannot be given preference by the petitioners or their

counsel over or against the others. On this basis, unity amongst

the Judges has been attempted to be tarnished and torn into

pieces through these baseless, frivolous and unfounded premises

particularly when it has already been ruled out by the Seven

Hon’ble Judges of this Court in Tikka Iqbal Muhammad Khan’s

case (PLD 2008 S.C. 178) and thereafter by 17 Judges of this

Court in review jurisdiction, and the actions taken against the

judiciary are to be considered a past and closed transaction. It is

worth-mentioning that judgment in Tikka Iqbal Muhammad

Khan’s case was never disputed or challenged by these

petitioners, through any review petition. It does not now lie in their

mouth through these petitions to criticize the above noted

judgment of Tikka Iqbal Muhammad Khan case, in collateral

proceedings, which have got no nexus to the merits of this case,

in respect of question of qualification and disqualification of Mian

Muhammad Nawaz Sharif. Having lost the proper opportunity of

disputing the validity and vires of that judgment of Tikka Iqbal

Muhammad case (ibid), now the petitioners cannot be permitted

to dispute or impugn the vires of that judgment, especially

through these applications. The petitioners and their learned counsel

have attempted to destroy the safe sailing of the ship of this great

judicial institution. They have tried to make a hole in the ship so

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CP 778/2008 etc

as to let it sink. The obnoxious plea raised and stand taken

requires to be deprecated by all the prudent men, women

including all stake holders interested to uphold the dignity and

independence of this judicial institution and by all the citizens of

Pakistan. It is the contempt of serious nature which cannot be

forgiven/pardoned by this Court. The petitioners who have sworn

affidavits by instructing their learned counsel through the above

arguments, addressed by their counsel, do not deserve any

leniency shown in the matter of this contumacious and

destructive arguments and the stand taken of bifurcating this

institution into two water tight compartments.

19. Resultantly the petitioners, namely, Mehr Zafar Iqbal and

Shakeel Baig, both are mulcted with cost of Rs.1,00,000/- each

to be paid/deposited in the office of this Court, within 15 days or

to suffer simple imprisonment of three months.

20. While the learned counsel who have addressed these

arguments without considering the repercussions on the judicial

system and institution, on the basis of instructions although

imparted to them by their clients, yet they cannot be excused on

this plea because it is their primary and prime duty to uphold the

dignity, unity and highest respectful image of this judicial

institution. This art of advocacy also cannot be approved and

appreciated. This Court has noticed with dismay the manner and

method of arguments addressed to this Court. As we have got

highest regard to the exalted legal profession and to the legal

fraternity in general, so we have restricted ourselves to the extent

of warning, considering it to be sufficient for them with remarks

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CP 778/2008 etc

to be careful in future and not to deviate from the path of

augmenting the respect of the judges and the institution, and not

to be entrapped, upon the direction of a client, to address the

Court in an abusive language or with the pleas and position

harmful to the judicial institutions although that may satisfy the

ego of their clientele. It is the cardinal principle that the remarks

which are creative of an atmosphere of distrust upon the judges

or on the judicial institution, whether these may be false or true

are bound to tumble down the sanctified image of this institution,

of requiring highest regard and respect. The mutilation of the face

of this institution would loosen the faith, trust and confidence in

the mind of the litigants which would be harmful not for this

institution but for the legal fraternity as well, as a whole and the

destructive consequences would be borne by all the important

segments, of the society in future.

21. Before taking into consideration the law of land and

judgments of foreign jurisdiction, we feel dignified to refer and

rely upon the Quranic Verses. In Surah Al-Ma’idah (6th Para) Verse

No.42, which has very beautifully laid down the rule of recusal.

The text is: -

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The English translation of above Verse of Surah Al-Maidah

by Muhammad Farooq-i-Azam Malik, of the Institute of Islamic

Knowledge Houston, Texus, U.S.A and translation by M. Asad

published by Daral Andaulus, Gibraltar is as under: -

“Therefore, if they come to you with their cases, you may judge
between them or refuse to do so. Even if you refuse, they will
not be able to harm you the least, but if you do act as a judge,
judge between them with fairness, for Allah loves those who
judge with fairness.”
“Hence, if they come to thee (for judgment), thou mayest
either judge between them or leave them alone; for, if thou
leave them alone, they cannot harm thee in any way. But if
thou dost judge, judge between them with equity: verily, God
knows those who act equitably”.

22. From the above Quranic Verse, it is the will, wish and

choice of the judge to accept the case for imparting justice

between the parties or to recuse himself from adjudicating the

dispute.

23. From this verse, a litigant has not been granted a

right to ask the judge to recuse himself. In a given case, it is the

option of the judge to entertain it or to decline its admission with

himself to administer justice between the parties of that case. If a

litigant does not feel justice to be done from a judge, he must not

place his case before the Judge. When the case is placed before a

judge by a litigant, thereafter the litigant cannot ask the judge to

recuse himself. The presentation of a case for decision before a

judge presupposes that he believes the judge able in all respect to

deliver justice. It would be contemptuous act of a litigant to

present his case for adjudication and then ask the judge to

decline to decide it. When a case is proffered before a judge, in

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CP 778/2008 etc

that event, the right to ask the judge to recuse himself is lost by

the litigant because he has already accepted his authority, valid

appointment, competency to administer justice, and with the

belief of his independence. He is presupposed to have believed

the judge to be a judge a person of integrity.

24. Before any finding is rendered upon this subject, it is

necessary to consider the definition of Recusal and its

applicability to the facts of this case.

The Recusal has been defined in Black’s Law

Dictionary, (Seventh Edition) in column IInd at page 1281 as: -

“Removal of oneself as judge or policy-maker in a particular manner,

esp. because of a conflict of interest”.

While “recusation” has been given the meaning of: -

“1. Civil Law. An objection, exception, or appeal; esp., an objection

alleging a judge’s prejudice or conflict of interest.
2. Recusal”

25. It is important to note that recusal has not been defined

with the concept of ineligibility or in-competency of a judge to

dispense justice. In other words, the Judge is considered

competent and no question of validity or constitutionality of his

appointment is in dispute. It is only the conflict of interest or

prejudices, which may arise and hamper the free and fair delivery

of justice for which recusal is being sought.

26. Seen from another angle, no prudent man can ask a person

to decide the validity and constitutionality of his own appointment

to an office, post or on a seat occupied by him, as it shall be a

decision not appealing to reason and acceptable to the person

seeking such decision, in case it is decided by that incumbent in

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CP 778/2008 etc

his own favour. Accordingly, recusal being prayed on the ground

of PCO Judges being invalidly and unconstitutionally appointed, is

not maintainable and is a fallacious and vicious prayer itself.

27. From the definition, even taken from the Black’s Law

Dictionary, it is apparent that it is the decision of the judge to

recuse himself, when he feels that there is possibility of conflict of

interest or prejudice which would be caused to a party of the case

in his participation or in the decision of that case. It is the decision

of the judge to gauge as to there is conflict of interest or not, and

that by making decision in a lis, his inclination or bent of mind

would not take him to such an extent, as to be on one side and

that it would be creative of such a mind, so as to cause imbalance

in the scale of justice, thereby prejudicing the case of a party

without giving fair decision on it.

28. Supreme Court being the apex Court of the judicial

hierarchy of the country, there being no other court except the

Court of Almighty Allah, how in such a situation, a litigant can ask

the Supreme Court to avoid the delivery of judgment after having

offered his lis, for doing the justice to it?

CASE LAW FROM PAKISTAN

In PLD 1989 S.C. 689 at page 741(w) (Federation of

Pakistan v. Muhammad Akram Sheikh) it was held, “It is for the

Judges concerned (and not the rest of the Judges in the Bench) to

decide in their judicious sagacity and wisdom whether they may

participate in the proceedings in question”.

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CP 778/2008 etc

CASE LAW FROM FOREIGN JURISDICTION

In Public Utilities Commission v. Pollak (343 us 451 + 95 L

ed 1068), “it was held that when the judges believed that
some unconscious feelings might operate in the ultimate
judgment, the judges might recuse themselves”.

In R v. Gough (1993) 2 All ER it was observed: -

“it is the feeling of the judge to judge as to whether his

feelings would be so strongly engaged as to victimize the
party in making unfairly in the decision of the controversy
due to some prejudice. In such a situation, the judge may
recuse himself and not to participate in the judicial
judgments.”

(2) PCO JUDGES

29. This term has been invented when a Provisional

Constitution Order was enforced by a brutal force, by deviating

from constitutional provisions and taking extra constitutional

steps. We are not concerned at this stage as to the reasons,

grounds and causes, which had taken place on 3rd of November

2007, particularly in the presence of Tikka Muhammad Iqbal

Khan’s case. This case has now closed the chapter of this

unhappy event of past history and has made an attempt to save

the judicial institutions of the country to take steps forward,

instead of beating about the bush. But we have taken this aspect

with another angle in this case, which has necessitated this

discourse and is required to be noted by all the concerned stake-

holders. The proclamation of emergency, enforcement of

Provisional Constitution Order I of 2007 and the issuance of an

order in the form of the Oath of Office (Judges) Order, 2007, were

not enforced upon the advice of the PCO Judges. No advice was
 22
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delivered by the PCO Judges and no assistance was provided by

these Judges to the military force to do such acts. The above

noted steps were admittedly taken by a military General which

were extra constitutional. Due to these extra constitutional steps,

a vacuum was created in the working of judicial functions

alongwith judiciary itself. After these steps were taken, some of

the Judges were invited to take oath, out of whom a small

negligible number of Judges had declined to take oath, while the

other Judges were not invited and offered the oath. The Judges

who were offered and invited to take oath were in an enigma as

to take or to refuse the oath. In case of refusal, the judicial

institution was to suffer greatest harm and its fabric which was

woven in a period of more than 150 years, was to collapse

completely. In the event of refusal to take the oath, it was

expected that this judicial institution might be occupied by such

persons who had no knowledge and expertise of delivering

justice. There were many other considerations also in their mind.

To save the judicial institution, to create hindrance and to prevent

the spreading of chaos in the country, for the better interest of

this institution and for the whole betterment of the citizens of

Pakistan, it was decided that the offer of oath might not be

declined. With this aim and purpose, and to put the derailed

wagons on the track of the rails (as stated by Mr. Ahmed Raza

Khan Kasuri), sincere, innocent and serious thoughts were given

to the problem by majority of judges, who had thereafter decided

to take oath so as to save the interest of country and the

Constitution from being destroyed further. These actions and the

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others were to be appreciated rather than to be deprecated. As

pointed out by Mr. Ahmed Raza Kasuri, it were the efforts of these

PCO Judges who had tamed the jungle loin by their wisdom. The

judges, who are now being named as PCO Judges are in fact, the

saviour of judicial institution and system, the main organ of the

State and the interest of the litigant public at large. The citizen of

Pakistan have been rescued from being pushed into chaotic

environmental situation where law of jungle was to prevail in case

these judges had not used their gumption of accepting the offer.

It may be noted that when the guns are roaring, force of pen is

silent, when guns are silent, voice of pen is brightened. The use of

pen in given circumstances, without wisdom is nothing but

destruction.

30. Let it be noted that these P.C.O. Judges had never been a

hurdle or obstacle in the campaign launched for the restoration of

those brother judges who either declined to take oath or were not

administered the same.

31. The example has been set up by these PCO Judges, when

they had welcomed those Hon’ble judges to take their previous

positions in the judicial system. It was, therefore, a matter of two

different thoughts to achieve the same goal of saving the judicial

institution and system, for which no one can be blamed. It is a

very sorrowful state of affair that a learned counsel of such a

stature, namely Mr. A.K. Dogar has uttered these words of

“faithless, law breakers and dishonest” persons. Before arguing

the case on this premises, Mr. A.K. Dogar must have given

thought, time and again to this aspect of the case and should not
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CP 778/2008 etc

have been swayed by the street slogans and should have avoided

to utter these words even upon the instructions of his cliental,

particularly when the transitional period was got immediately

wrapped up by the efforts of these P.C.O. Judges from General

Pervaiz Musharraf. If one set of judges had stood up for upholding

the flag of independence of judiciary, the other was defending the

fort of judiciary from being intruded from the aliens to this

complexity of judicial system, although task was different but the

goal was one.

32. The stand and the plea taken by Mr. A.K. Dogar although

upon the instructions of his clientele, was destructive of the

sanctity of this judicial institution. He was unmindful that this plea

was being raised when the judiciary and its judicial institutions

were working in a complete harmony, unity and delivering justice

with its purity of thoughts, without bias and without prejudice to

any one. The smooth working of the judicial functions of the

judiciary was also disturbed by Mr. A.K. Dogar upon raising this

plea of enormously destructive nature regarding this judicial

institution. It may be remembered that this magnificent building

of justice is constructed upon the belief of its honesty and

sanctity. If this image is damaged, then no one will be ready to

accept the judgments which are delivered by these judicial

institutions. Anarchy and chaos would prevail within the citizens

of the country. When judgments of courts are not accepted,

submission and surrender to it is not performed, in that event,

street and mob justice is invited, to become the rule of the day.

Judgments require yielding of one’s will and wish, without

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CP 778/2008 etc

murmuring and grumbling. If any party is grouched, it may

approach to the higher court in accordance with law, and not to

become judge himself so as to drag the judgment in the street for

mob and street justice. Judicial institutions, judges and their

judgments, require veneration and obeisance. If a judge is

corrupt, his removal can be attempted through lawful means and

manners as prescribed by law. But to malign judges, to impute

dishonesty and to utter allegation of their being faithless, and law

breakers are the words of gravest contempt. The use of

derogatory language for the judiciary is a conspiracy to destroy

the sacred temple of justice, which would tumble down its

structure and there would be none in that event, to reconstruct it.

33. Learned Advocates and the legal fraternity in general is, in

fact, the custodian and preserver of the dignity, independence

and sanctity of this judicial institution. It must be remembered

that their own respect and reverence is attached with the sanctity

and reverence of this judicial institution. If a fraction of the legal

fraternity is out to disfigure the face of this scared institution or to

annihilate its image of impartiality, sacredness, sanctity and

independence, none would be there to save them and this

institution.

34. With these words and sentences, we desire and expect that

the learned Advocates appearing in the cases, would observe this

direction in future, because they are officers of the court and are

saddled with the duty of upholding its dignity and independence.

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(3) BIAS

35. During arguments of the case much stress has been

laid by Mr. Muhammad Akram Sheikh and Mr. A.K. Dogar, learned

counsel for Mehr Zafar Iqbal and Shakeel Baig, that as there is

every likelihood of bias in the mind to prevail in the decision of

the instant case, therefore, the Judges of this Bench may decline

to hear this case. The main reason which has been argued by the

learned counsel is the apprehension in the mind of petitioners

that the judges of this Bench consist of PCO judges and they had

taken oath under the Provisional Constitution Order, 2007, and

Oath of Office (Judges) Order, 2007, promulgated by Gen. Pervez

Musharraf, the Chief of Army Staff, and Mian Muhammad Nawaz

Sharif, the candidate, having announced support in favour of

deposed judges, there was likelihood of existence of bias in the

mind of PCO judges, as against Mian Muhammad Nawaz Sharif.

The petitioners, therefore, as per learned counsel are feeling that

the case would not be decided fairly and in their favour. According

to Mr. Muhammad Akram Sheikh and Mr. A.K. Dogar, learned

counsel, Imam Abu Hanifa (Rehmatullah Alaih) had declined to

accept the office of the Judge, therefore, the present judges might

follow that example. It is argued that as the Judges of this Court

have delivered the judgment of PLD 2008 S.C. 178 on

30.11.2007 in Tikka Iqbal Muhammad Khan case, in their own

favour, which is a void, non-existent and coram non judice

judgment, therefore, as per legal maxim, Nemo debet esse judex

in propria sua causa (that no person should be judge in his own

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CP 778/2008 etc

cause) it is a prohibited course for the present judges to hear this

case, as the petitioners are apprehensive that justice would not

be done by the present Judges of this Bench in their case. Mr.

Muhammad Akram Sheikh has referred to the passage from a

book of De Smith’s Judicial Review, Sixth Edition, authored by the

Rt., Hon. The Lord Woolf and others, which is reproduced as

follows: -

“by taking the oath of office as a judge, a man ceases to be human

and strips himself of all predilections, becomes a passionless
thinking machine” is doubtless beyond achievement.”
“Common law (and sometimes statute) disqualifies a decision-
maker from adjudicating whenever circumstances point to a real
possibility that his decision may be predetermined in favour of one
of the parties)”
“The principle expressed in the maxim nemo iudex in sua causa (no
one should be a judge in his own cause) refers not only to the fact
that no one shall adjudicate his own cause; it also refers to the fact
that no one should adjudicate a matter in which he has a conflicting
interest.”

36. Learned counsel has also referred passages from

Halsbury’s Laws of England/Administrative Law (Volume 1(1)

(2001 Reissue)/4, Judicial Control with regard to rule of “direct

personal interest and apparent bias”. The following is the relevant

passage from that text: -

“first, where an adjudicator has either a direct pecuniary or

proprietary interest in the outcome of the matter, or can otherwise
by reason of a direct personal interest be regarded as being a party
to the action, and second, where either by reason of a different form
of interest or by reason of his conduct or behaviour there is a ‘real
danger’ of bias on his part. In the former category an automatic, and
irrebuttable, presumption of bias is raised, in the latter category the
test for apparent bias is satisfied”.

37. To support the above principles and rules, learned

counsel has cited the cases of (i) Metropolitan Properties v.

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CP 778/2008 etc

Lannon (1968) 3 All. E.R. 304; (ii) Pinochet, in re – [1999] UKHL

1; (iii) Locabail (U.K.) Ltd. V. Bay Field Properties Ltd.- [2000]

EWCA Civ 3004; (iv) Magill v. Porter – [2001] UKHL 67, (v)

George Meerabux v. The Attorney General of Belize (Belize) –

[2005] UKPC 12; (vi) AWG Group v. Morrison [2006] 1 All ER 967;

[2006] EWCA Civ 6; and (vii) Gillies (AP) Secretary of State for

Work and Pensions [2006] UKHL 2.

38. Learned counsel also has referred American Law on

the subject from U.S. Code Collection§ 455 regarding

Disqualification of justice, judge or magistrate judge, The relevant

para of which is reproduced through the following passage: -

“where a judge has a personal bias or prejudice concerning a party,

or personal knowledge of disputed evidentiary facts concerning the
proceeding; in private practice he has served as lawyer in the matter
in controversy; he has served in governmental employment or in
such capacity participated as counsel, adviser or material witness;
has financial interest individually or fiduciary; has got third degree
relationship with such a person; was a party to the proceedings; was
acting as lawyer; a material witness in the proceedings; or known by
the judge to have an interest that could be substantially affected by
the outcome of the proceedings.”

39. These were the qualifications enumerated by the

aforementioned U.S. Code Collection for disqualifying a judge,

justice or judge magistrate.

40. He has also relied upon two cases from Indian

jurisdiction reported in AIR 1959 S.C.1376 (Gullapalli

Negeswararao etc. v. The State of Andhra Pradesh and others)

and AIR 1987 S.C. 2386 (Ranjit Thakur v. Union of India and

others. In the former judgment, it was held that “no man shall be

a judge in his own cause; justice should not only be done but
 29
CP 778/2008 etc

manifestly and undoubtedly seem to be done; if a member of a

judicial body is subject to a bias (whether financial or other) in

favour of, or against, any party to a dispute, or is in such a

position that a bias be assumed to exist, he ought not take part in

the decision or sit on the tribunal”. While in the latter judgment

test of likelihood of bias was noted as follows: -

“…tests of the likelihood of bias what is relevant is the

reasonableness of the apprehension in that regard in the mind of
the party. The proper approach for the Judge is not to look at his
own mind and ask himself, however, honestly, “am I biased?” ; but
to look at the mind of the party before him…..” (underlining is
provided by us)

Two more judgments on which the learned counsel has placed

reliance are as follows: -

(i) Bhajan Lal v. Jindal Strips Ltd. (1994 SCC (6) 19

JT 1994 (5) 254;

(ii) 1994 SCALE (3) 703

41. It was held in those judgments that in the case of non

pecuniary bias, regard was to be had to the extent and nature of

interest. It was observed in those cases that the judge had to

satisfy himself to this fact that there was a real likelihood of bias.

‘Real likelihood of bias’ is how to be determined, the test was also

provided in those judgments. It was found that “real likelihood”

depended on the impression which the court would get from the

circumstances in which the justices were sitting. Bias should be

based on reasonable suspicion.

42. Learned counsel has also placed reliance upon the

judgments pronounced by Pakistani Courts. In Ghulam Rasul and

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CP 778/2008 etc

others v. Crown (PLD 1951 F.C. 62) Federal Court observed as

under: -

“Nothing should be allowed to happen in a case which may give rise

to a reasonable apprehension in the mind of an accused person that
he would not or did not have a fair trial. It is essential that justice
must not only be done but must manifestly be seen to be done”.

43. And so the case of Federation of Pakistan vs.

Muhammad Akram Sheikh (PLD 1989 S.C. 689), which judgment

is a landmark judgment on the subject of principles, applicability

and exceptions of Bias.

44. We have also found some observations in para 31 of

that judgment which are beautifully worded and demonstrate the

present scenario of our passions and feelings which are

reproduced as follows: -

“31. Courts are indeed a storm centre facing the panoply of human
problems, crowded dockets and unrelenting work schedules. Justice
Oliver Wendell Holmes said: “We are quiet here but it is the quiet of
a storm centre”.
In Justice Benjamin Cardozo’s memorable words, “the great tides
and currents which engulf the rest of men, do not turn aside in their
course, and pass judges by”. We should only add that the judges
must remain unruffled and calm in the midst of contending forces.
To recall the words of Mr. Justice Frankfurter in Public Utilities
Commission of the District of Columbia v. Franklin S. Pollak16; “The
judicial process demands that a judge move within the framework of
relevant legal rules and the covenanted modes of thought for
ascertaining them. He must think dispassionately and submerge
private feeling on every aspect of a case. There is a good deal of
shallow talk that the judicial robe does not change the man within it.
It does. The fact is that on the whole, judges do lay aside private
views in discharging their judicial functions. This is achieved through
training, professional habits, self-discipline and that fortunate
alchemy by which men are loyal to the obligation with which they are
entrusted.” With this we leave. (emphasis supplied by us)”.

45. We have also been apprised of a judgment Webb and

Hay v. The Queen – (1994) 181 CLR 41, (1994) 68 ALJR 582 F.C.
 31
CP 778/2008 etc

94/030 from the High Court of Australia. In that judgment proper

test given was as follows: -

“…the proper test is whether fair minded people might reasonably

apprehend or suspect that the judge has prejudged or might
prejudge the case……..” (Underling provided by us).

46. Although the whole judgment of PLD 1989 S.C. 689

has beautifully assimilated the case law and principle governing

bias and the guidance was provided in it as to when a judge was

not to take part in the adjudication of a case, yet in the same

judgment the circumstances for applicability of principle that “no

man can be judge in his own cause” were also noted. In it, rule of

exception due to necessity was also narrated. In that judgment, in

the exception part, it was held that the judge was to decide as to

whether the party was not resorting to a device with an ulterior

motive, so as to prevent him (the judge) from sitting on the Bench

while dealing in a particular case. It was also ruled that the

decision of allegation of bias was the prerogative of the judges

concerned to decide it in their judicial sagacity and wisdom as to

sit or not to sit on the Bench.

47. Judgment in the case of Malik Asad Ali and others v.

Federation of Pakistan (PLD 1998 S.C. 161) has also been cited

by Mr. Muhammad Akram Sheikh, in which objection raised

against some of the judges sitting on the Bench was that they had

previously participated in other legal proceedings against the

same person. But in the aforementioned judgment, it was also

held as under: -

“Mere apprehension in the mind of a litigant that he may not get

justice such as is based on inferences drawn from circumstantial
indications will not justify the raising of the plea. The facts adduced
 32
CP 778/2008 etc

must be such that the conclusion of bias follow necessarily

therefrom. On no weak ground can any person be permitted to
attack the impartiality of the superior Court and consequently should
the proof fail to satisfy the requisite standard, he may be found in
contempt”. (underlining is ours)

48. Learned counsel has referred to a judgment delivered

in the case of Asif Ali Zardari and another v. The State (PLD 2001

S.C. 568) and has referred to the passage with regard to three

different kinds of bias which can be found at page 592 of that

judgment, which are summarized as “ the direct connection with

the litigant of the judge through a legal interest, pecuniary

interest in the cause, or personal bias towards a party.

But in the same judgment in para 25, the following

exception has been found: -
In other words, the principle is well settled that a judge of the
superior court is blessed with a judicial conscience. It is for him to
decide to hear or not to hear a matter before him. “(underlining is
ours)
49. Upon the strength of above noted authorities and the

principles laid down in those judgments, learned counsel Mr.

Muhammad Akram Sheikh has prayed that the present Bench

may not hear the case.

50. In reply to the arguments, Mr. Ahmed Raza Qasuri,

has stated that the present Judges were not privy to the action of

deposing of the judges. Qualifications and disqualifications of the

judges are not involved in the present case, so the rule that “no

one can be Judge in his own cause”, cannot be applied to the

present case. As regards the purpose of oath as provided by

Article 178 of the Constitution, the crux of the oath is not to allow

any personal interest to influence the official duty and conduct or

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CP 778/2008 etc

the decisions. Judges come from this environmental set up. They

should not be disturbed with contemptuous language. If bias is

alleged against the present Judges, then the perception can arise

in the mind of the respondents against those judges who are

being selected by the petitioners. Frivolous petitions have been

filed so as to malign the Judges. Cases of political nature must

not be brought before this Court and must be resolved in the

Parliament.

51. We have examined the question of bias in detail in

accordance with the facts of the case as well as the case law on

the subject. This is an apex court of the country, against the

decision of which no appeal or revision can be filed before any

other Court. The judgments of this Court are the final decisions of

the judiciary. If the judges of this Court are imputed bias, there

will be no end to chaos. Judges of this Court cannot be swayed by

cheap and petty slogans and attributions of frivolous nature. They

are assessors of their own conscience, as they knew that they are

answerable to the Allah Almighty. Why they should feel bias in

favour of any one? When they are not involved in any referred to

incident, which has already become a past and closed

transaction. There are no reasons and grounds to possess the

bias against petitioners and their candidate. As earlier pointed

out, the present Judges cannot be called as PCO Judges because

they are holding this office of highest reverence under the oath

prescribed by Article 178 of the Constitution through Sixth

Schedule of the present Constitution. After having taken oath

under the Constitution, they are constitutional Judges. They are

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CP 778/2008 etc

working as such. Their work itself display the smooth working of

the judiciary under the Constitution. Therefore, there is nothing in

their mind to feel prejudice and bias against the petitioners or

their candidate on this basis.

52. It is very strange and amazing argument, not

appealing to reason that 16 judges out of 20 are biased

according to the version of the petitioners. Ex-facie this is a

frivolous version adopted by the petitioners because if the above

mentioned number of judges were biased as against them, why

then civil petitions for leave to appeal were filed by them on

25.6.2008, when all the Judges at that time were holding the

office of Judges of the Supreme Court as such? Why the

application of bias was not moved alongwith the civil petitions? It

may be pointed out here that the reference to our four respectful

brother judges, by these petitioners is, in fact, politically

motivated and generated version with ulterior purposes, which

trend has to be curbed by this highest Court of this country. It may

be noted that in the application for recusal, petitioners have

iterated the version of their leader. In the text of the petition, it

was alleged by them, that their leader was not acknowledging the

status and valid appointment of these Judges, if it was so, then

why the petitioners had come to this Court and had filed these

petitions? It appears, and is evident from the above noted filing of

the petitions and the adopted version that the aim and object of

the petitioner was not to obtain decision on the merits of the

case, as they were fully aware regarding the weaknesses of their

case. Their desire and design was only to malign the character of
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CP 778/2008 etc

judges and to defame this highest judicial institution with the

imputation of partiality. It was, therefore, that the present

petitioners, when the case was commenced for hearing, had filed

the petition for recusal, which was presented by them after

passage of near about 5 months and much stress was laid by

them to decide this application first, so that they might be able to

create fuss, upon the rejection of their petitions. They had not

come to argue the cases to this court for obtaining the decision of

their cases on merits. The filing of CPLAs by these petitioners, the

proposer and seconder, without any petition being filed by the

candidate himself, in the case was only an overdoing with a prior

knowledge that their candidate was not prepared to approach this

Court, and that he was not acknowledging the status and was not

ready to accept the decision of this Court. In any case, with the

filing of these petitions of recusal, this stratagem and design was

manifested with much clarity. From this narration, one can easily

judge the intention of these petitioners, who had approached this

Court for creation of division, bifurcation, disunity amongst the

judges of this Court, attribution of dishonesty and arousing of

feelings of abhorrence against this institution. Their purpose was

only to abuse the judges and the court by filing these petitions

through far-fledged past events, having no nexus or any link with

the making of decision of their cases.

53. It must be kept in mind that the Judges of this Court

cannot yield to any temptation and allurement. They are the final

adjudicators of the law of the land and their wrong interpretation

of law has got far-reaching repercussions on the whole set up and

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CP 778/2008 etc

judicial system, as they are minarets of law for the subordinate

judiciary to follow it in their judicial cases. Their age, judicial

experience and training does not allow them to decide the case

without keeping its merits in mind.

54. To impute bias is an easy task but to prove its truth is most

difficult job. Judges of the highest, and apex court cannot be an

easy prey to the pressures of any political party or any other

highest authority. Their impartiality and independence lies in their

encouragement to dispense fearless, temptless and pressure less

justice. They are cognizant of their stature and status. To play

with their independence, with unfounded perceptions is nothing

but the distortion of real facts, which must not be allowed to

prevail and to preoccupy the mind of any person, otherwise this

trend would destroy the whole image of independence of

judiciary.

55. Before deciding this case, we have been continuously

posing questions to our innerselves as to whether we feel

prejudice against a party to the case or have got any leaning in

favour of the other. The answer in our mind and from our

conscience was in the negative. By giving a thought to it, we felt

that the other judges were to be imputed and would be facing

with the same allegations and situation as they were also sailing

in the same boat and the petitioners and their learned counsel

had undistinguishably maligned all the judges in the same

fashion and no one was left with any exception to it. Therefore, we

decided to adjudicate this case.

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CP 778/2008 etc

56. It is interesting that still the civil petitions were not

registered by the Registrar office. Instead of pressing the

application containing prayer for registration, much stress was

laid down upon the decision on the recusal petitions which gave

way to the impression that petitioners were not serious to obtain

decision on merits but had come to this Court to achieve some

ulterior motive and objectives best known to them. When the

petitioners were cognizant that their candidate was not

acknowledging the status of this court as a court and they were

also adopting and toeing the same line, then what was the fun to

approach this Court? The answer was visible when arguments

were addressed and merits of the case were adjudged. The

absence of the candidate in whole of the proceedings was also

supportive in raising this presumption of fact.

57. What is bias, and what are its determinative factors?

It is defined in Black’s Law Dictionary, 7th Edition, by Brayan A.

Garner with others; as” –

‘Bias’ “inclination; prejudice < the juror’s bias prompted a challenge

for cause>. – bias, vb. – biased, adj. judicial bias. Bias that a judge
develops during a trial. Judicial bias is usu. Insufficient to justify
disqualifying a judge from presiding over a case. To justify
disqualification or recusal, the judge’s bias usu. Must be personal or
based on some extrajudicial reason”.

In PLD 2001 S.C. 568 (Asif Ali Zardari and another v. The

State) description, kinds and test of bias have been exhaustively

dealt with, and with clarity expounded. It has been noted in the

aforesaid judgment at page 587 that “bias” is synonymous with

“partiality” and strictly to be distinguished from “prejudice”. Under

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CP 778/2008 etc

particular circumstances, the word has been described as a

condition of mind; and has been held to refer not to views

entertained regarding a particular subject matter, but to the

mental attitude or disposition toward or disposition towards a

particular person and to cover all varieties of personal hostility or

prejudice against him.

58. While providing description of bias in that, it was held: -

“accused having a right of fair trial by a judicial minded person,

not functioning under an influence which might paralyze mind to

result in absence of a fair trial. The bias is in fact based on the

principle of Latin maxim “Nemo Debet Esse Judex in propria sua

causa” meaning thereby that no one can be judge in his own

cause.

59. Bias in our estimation is: -

“A state of mind of an adjudicator, having predetermined feeling,

inclination, passion or leaning, liking or disliking, prejudicial or
adverse to any party or to the subject matter involved in a lis, due to
pecuniary or any other interest, based on relationship, friendship or
having any intimacy with any party of the case, so as to make
decision of the lis in favour of any party or particular person, without
adjudging the merits of the case in a fair and balanced manner”.

60. But bias must be differentiated and distinction must

be kept in mind between the following situations: -

“One of a judge/arbitrator/juror, who is predetermined to decide

the lis in favour of one party before the hearing of the case due to
extraneous reasons;
and
The other arriving to a conclusion during the hearing of a case.

The former can be called bias, while the latter would be

assessment process of the merits, culminating into a decision of

the case.
 39
CP 778/2008 etc

61. To our mind, causes may be manifold. It may be

based on the pecuniary interest of a judge involved in the case,

the inclination of a judge in favour of a party; may be based on

the ground of relationship, intimacy towards any party, there may

be a close relative or an intimate friend. There may be a case

where judge has got fiduciary relationship with any party in the

case. There may be a case of a judge who had been a member of

a political party. There may be a case where a judge might have

remained an advocate of any party to the lis, he might have been

an arbitrator, referee, or conciliator in the subject matter for any

party to the case. He might have developed hatred to a party due

to the acts and demeanor of a party before filing of the petition.

All the reasons and kinds cannot be completely encompassed

through this narration which may give rise to bias and be the

example in procreation of bias in the mind of a judge. But it is

hard and real fact that we all the judges of this Bench have got no

such feelings, links or relations with any party to the proceedings

as noted above. There is no apparent or latent reason to lean in

favour of one or to be against the other. If one political party has

got its own stand or stance, it has nothing to do with the working

of this Court and upon its decision. As noted under the heading of

“recusal”, all the present judges are constitutional judges and

having taken oath under the Constitution are bound to administer

and deliver justice in accordance with the Constitution and the

law of the land. Their faculty of approach cannot be considered to

be effected by any stretch of imagination to be in favour of

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CP 778/2008 etc

anyone due to the stand/stance taken by any political party in

this country.

62. It is worth mentioning that a judge once appointed in the

superior court has got sufficient security/guarantee in the

Constitution, not to be removed or dismissed unless through the

decision of Supreme Judicial Council constituted under the

Constitution. Therefore, these guarantees and safety measures

particularly in a democratic step up, are sufficient to protect and

guard the interests of judges of the superior courts to impart

justice without fear and favour, and without being influenced by

the parties stand in the streets.

63. In 2003 SCMR 104 (Government of NWFP through its Chief

Secretary and another v. Dr. Hussain Ahmad Haroon and others)

at page 110, test was provided by the Hon’ble Judges of this

Court, “where a litigant could reasonably apprehend that a bias

might have operated against him” (emphasis through underlining

has been provided by us). In PLD 2001 S.C. 568 (Asif Ali Zardari

and another v. The State) the word “real likelihood is the

apprehension of a reasonable man, apprise of the facts and not

suspicion of fools or “capricious persons”. It has also been noted

in that judgment that judges of superior courts are blessed with

judicious conscience”. Accordingly, the real test to adjudge bias is

to examine and analyse the facts narrated and stand taken by a

party as to whether in the given circumstances a reasonable and

prudent man would feel that the “Bias” in the mind of judge was

available or not? In the present case, it is evident and established

that all judges of this Court are constitutional judges and the
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CP 778/2008 etc

issue of P.C.O. has become a past and closed transaction. There

is, therefore, no reason to feel “Bias” by a reasonable prudent

man in such circumstances.

64. According to Administrative Law by HWR Wade – Third

Edition – published by Clarenda Press Oxford, at page 176, it has

been noted that “justice should not only be done but should

manifestly and undoubtedly be seen to be done. Nevertheless, a

line has to be drawn between genuine and fanciful cases”.

(emphasis is provided by us). It was further provided at another

place, where the words are material to be noted which are: -

“A court of appeal has protested against the tendency to impeach

judicial decisions upon the flimsiest pretext bias, and against the
erroneous impression that it is more important that justice should
appear to be done than that it should in fact be done”. (Underling is
provided by us).

65. In the case of The Queen v. Mc Kenzie 1892] QBD

519, it was found that the Magistrates were not biased in their

decision when they had got no pecuniary interest in the matter

and the circumstances were not suggesting that there could be

likelihood of any bias or there was any biased adjudication.

In the case reported as The Queen v. Burton ex parte

Young [1897] QBD 468 it was argued that if any pecuniary

interest was in existence, it would be sufficient to cause

disqualification. A pecuniary loss or interest might be small one.

But the above noted case is not applicable to the

present case because admittedly in the present case, judges have

got no pecuniary interest in the matter or related to any party.

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CP 778/2008 etc

The case of Locabail (UK) Ltd. V. Bayfield Properties (2000

1 All ER 65) relied upon by both the parties, had laid down the

principles and guidelines with regard to judicial bias. It was held

that when there was a real danger of possibility of bias on the

part of a judicial decision maker, the judge might recuse himself

from the case. It was held that the circumstances were to be

considered of each case but in the aforesaid case, it was also

held that where the objection was wrongly made, the judge was

not to yield to a tenuous or frivolous objection. (Underlining is

ours).

66. The crux which has been deduced from the above

referred judgments, is that there must be a real danger of

possibility of bias. It may be due to conflict of interest, pecuniary

or of any other kind. But the judge would not recuse himself on

the basis of alleged bias upon the frivolous objections, having no

substance, having no possibility of bias to happen, having no

likelihood of real danger of bias to strike in the mind of a party

and having no reasonable cause to exist. The remonstration

against the judge in any of the above mentioned situations

hearing the case is nothing but a frivolous attempt to restrain a

judge to perform his duties of adjudication of cases, which can

not be allowed to hamper the administration of justice. Emphasis

was, therefore, laid on the word “real danger” in the cases.

67. In the case of The Queen v. Australian Stevedoring

(88 CLR 100 from the High Court of Australia, it was held that

there must be strong grounds for holding bias against the judicial
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CP 778/2008 etc

or quasi judicial officer. The bias must be “real” with the result

that a substantial distrust must result and exist in the minds of

the reasonable persons. It was also held that “preconceived

opinions – though it is unfortunate that a judge should have any –

do not constitute such a bias nor even the expression of such

opinions, for it does not follow that the evidence will be

disregarded.

In this case also, it was held that there must be ‘real bias’.

68. In the case of Public Utilities Commission of the

District of Columbia v. Franklin S. Pollak and Guy Martin (343 US

451 + 95 L ed 1068) it was would that a judge would not

participate in a decision when there was a ground for believing

that such unconscious feelings might operate in the ultimate

judgment or might fairly lead others to believe that they were

operating in the judgments, in such case judges might recuse

themselves.

69. In R v. Gough (1993) 2 All ER 724 the test provided

for real danger of bias on the part of concerned member of the

Tribunal in question was in the sense that he might unfairly

regard with favour or disfavour the case of a party to the issue

under consideration by him.

70. In the recent case of 2001 from the Supreme Court of

United States in Richard B. Cheney, Vice President of the United

States, ET. AL. v. United States District Court for the District of

Columbia ET AL., it was held “the decision whether a judge/judges

impartiality can “reasonably be questioned” is to be made in the

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CP 778/2008 etc

light of the facts as they existed, and not as they were surmised

or reported. Mr. Justice Scalia refused to recuse because he held

that in the courts below, a judge could recuse to be replaced by

another judge and the case would proceed normally. But in the

Supreme Court he considered it in a different consequence by

holding that in case of recusal for the remaining eight justices, in

case of any division, a tie would not be there. Therefore, in the

Supreme Court the case was to be held differently. (underlining is

ours).

71. It may be noted, that the present case is akin to the

above noted case, where all the judges have been considered by

the petitioners to be biased against their case. When such is the

case, who would then hear and decide the case of the petitioners.

Is it not an interesting prayer, and is it not the case wherein no

decision is being wished by the party to be made by any judge of

this Bench and by this Court.

72. What is the test to determine the existence of bias?

To our mind and from the analysis of the above noted authorities,

and facts, the test of bias is, the thought of a prudent/reasonable

man in the given circumstances of a case. If a prudent man

considers the facts and circumstances of a case demonstrating

and to be creative of bias in the mind of a judge and the real

danger of having no fair trial at the hands of the aforesaid judge

is apparent and existing, then the question would be relevant,

otherwise it would not be allowed to work, when a person having

mere apprehension on the basis of flimsy grounds, suppositional

thoughts, surmises not in reality, with ulterior motives and

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CP 778/2008 etc

making pretences so as not to get justice from a particular judge,

with a view that he might be able to get the case transferred on

that basis to the judge of his own choice or to the selective

judges, there being no likelihood of bias, or there being no real

danger of unfair trial and so many other reasons which cannot be

exhaustively encompassed.

73. In the present case after hearing all the parties, we

have found that in fact, there is no question of bias to take place

in the hearing of the instant case. Actually, the petitioners do not

possess locus standi to pursue this case, therefore, to

procrastinate its prompt decision and to get transfer of it to the

“judges of their own choice”, a hypothical danger of bias has been

invented and presented, otherwise there is no likelihood of bias to

prevail in the decision.

74. Interestingly and astonishingly, it has been noticed

that in the case of Mian Muhammad Shahbaz Sharif, the brother

of the candidate and also a prominent leader of PML (N) with

similar view point, not to get hearing of the case from PCO

Judges, no such application for bias or recusal was filed in his

case. Accordingly, this prayer of petitioners is dismissed.

(4) LOCUS STANDI

75. Mehr Zafar Iqbal, the proposer and Shakeel Baig, the

seconder had filed applications under Order I Rule 10 of the CPC

in the Writ Petition filed by Noor Ellahi, the opposing candidate of

Mian Muhammad Nawaz Sharif and in the writ petition of Syed

Khurrum Shah. Their applications were rejected by the Lahore

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CP 778/2008 etc

High Court, Lahore, holding them having no right to be impleaded

in these writ petitions. The question arises as to whether both

these petitioners had the right to file these applications under

Order I Rule of the CPC or under Article 199 of the Constitution in

the aforementioned writ petition and then to file civil petitions in

this Court, in the absence of Mian Muhammad Nawaz Sharif, the

contesting candidate, who had opted not to defend the verdict

passed against him in the Lahore High Court, by which he was

declared disqualified to contest election. To comprehend the

controversy and the right arising therefrom we have to examine

the nature of the dispute involved in the case. It is an admitted

fact that Noor Ellahi who had filed writ petition No.6468 of 2008

before the Lahore High Court, Lahore against Mian Muhammad

Nawaz Sharif, was an opposing candidate against Mian

Muhammad Nawaz Sharif. According to the version of Noor Ellahi,

his contesting candidate Mian Muhammad Nawaz Sharif was

disqualified and his nomination papers could not be accepted on

15.5.2008 in the by-election. To say in other words, the pivotal

point for determination in the case was qualification and

disqualification of Mian Muhammad Nawaz Sharif. To understand

the nature of this right, we have to advert to the definition of

qualification and disqualification as defined in Black’s Law

Dictionary, 7th Edition which is as under: -

“Qualification” The possession of qualities or properties (such as

fitness or capacity) inherently or legally necessary to make one
eligible for a position or office, or to perform a public duty or
function”.
Disqualification: - The act of making ineligible; the fact or condition
of being ineligible.”
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CP 778/2008 etc

76. From the above noted definition, it is evident that

qualifications and disqualifications are the inherent, personal,

capabilities, abilities, qualities and disabilities of a person which

are best known to that person. The keys of gate of this secret

room lie with that person. Other person cannot gauge it or

disclose those secrets other than the person himself or unless

instructed properly and completely by him to his representatives

and agents. All these are the personal rights, inherent and

possessed by that person himself. Dispute regarding the right of

the person concerned from being a member of Assembly is in the

nature of private rights of two persons to the same office vide

PLD 1970 S.C. 98 at page 113 (Lt. Col. Farzand Ali and others v.

Province of West Pakistan through the Secretary, Department of

Agriculture, Government of West Pakistan, Lahore) which

judgment was affirmed by this Court in the case of Hafiz

Hamdullah v. Saifullah Khan and others (PLD 2007 S.C. 52) at

page 62.

77. It is an admitted fact that proposer and seconder are

not claiming their status as agents or representatives of Mian

Muhammad Nawaz Sharif in the case in hand. They had not filed

applications under Order I Rule 10 CPC before the Lahore High

Court, Lahore in such capacity. They are claiming an independent

right vesting in them to defend the candidature of Mian

Muhammad Nawaz Sharif. In such a situation, when the

candidate himself is not coming forward to defend his

qualifications and disqualifications, which are personal and

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CP 778/2008 etc

inherent with that person, how the proposer and seconder can

claim an independent right to appear and to defend such a

candidate when the candidate himself is not prepared and ready

to safeguard his qualifications and to oppose his alleged

disqualifications, who has got a legal right to assert, dispute and

defend? The proposer and seconder cannot claim an independent

right to defend him, when they are not agent or representatives of

the candidate, because due to failure of Mian Muhammad Nawaz

Sharif to dispute and challenge those findings, those are

considered to have been correctly and rightly been possessed by

him. Proposer and Seconder cannot act against the will and wish

of a candidate with regard to his acceptance of qualifications and

disqualifications, as those proceedings shall be antagonist to his

interest.

78. After the proposer and seconder recommend a

candidate, consent of the candidate becomes necessary for the

contest of the seat of the assembly. If the candidate does not give

his consent, the recommendations of the proposer and seconder

become a futile exercise. They can not compel a person, to whom

they have recommended, to become a candidate unless the

consent of that candidate is given. In other words, proposer and

seconder are only recommendees and their recommendations

would ripen into a tasteful fruit when the candidate gives consent.

To amplify it, one can state that their recommendations are

dependent upon the choice and will of candidate, which right of

candidate is an independent right who may or may not exercise it

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CP 778/2008 etc

by giving consent or by declining to accept those

recommendations to become a candidate. After the

recommendations are made, this dependent right is merged into

an independent right vested in the candidate. The dependent right

looses its significance and existence thereafter and the

independent right of candidate comes and appears on the

surface.

79. It is material to note that the proposer and the

seconder does not figure thereafter in the whole election process.

After the nomination papers are accepted or rejected, it is for the

candidate to withdraw or to retire from the election. In such an

event, the proposer and seconder can not force the candidate to

contest the election by or through any legal proceedings. This

logic itself shows that after the recommendations are made by

the proposer and seconder, they have got no right to ask the

candidate legally to remain in the contest. In the present case,

the decision of candidate not to defend his qualifications and

disqualifications, and not to contest the election, goes a long way

to establish this fact that the candidate is not interested to

remain in the field of contest or be a candidate for the proposed

seat any more, otherwise he would have appeared at least before

this Court. In such a situation, the proposer and seconder have no

independent right to file this petition for impleadment in the writ

petition and through civil petition in this court. In 1994 CLC

(AJ&K) 1108 (Jammu and Kashmir Council for Human Rights

through Secretary, Rawalpindi and another v. Secretary, Azad

Jammu and Kashmir Legislative Assembly Muzaffarabad and 4

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CP 778/2008 etc

others), elector was declared not to be an aggrieved person,

therefore, not competent to file writ petition on behalf of a

deseated candidate.

80. It is important to have a cursory look at the provision

of subsection (5) of section 14 of the Act, by which the right to

appeal against the order of acceptance or rejection of nomination

paper, by the Returning Officer has been conferred upon the

candidate and not upon any proposer or seconder or on any other

person. This shows the imposition of limitation and restraint

upon the right of proposer and seconder, after the

recommendations and scrutiny, by not permitting them

thereafter, to pursue the election proceedings any further.

81. Mr. Muhammad Akram Sheikh, has brought a novel

concept of trust to be made applicable to the facts and

circumstances of the case, to support the locus standi of Mehr

Zafar Iqbal and Shakeel Baig, the proposer and seconder. The

following arguments have been addressed by the learned counsel

with his assistants: -

(i) The nature of public office is like a trust. In the words

of Mr. Muhammad Akram Sheikh “public office has been held

since long to be in the nature of a public trust. The beneficiary of

this trust is the electorate and the holder of public office is a

trustee”. He has placed reliance on the case of Yaselli v. Goof et

al. reported in 12 F.2D 396 from volume 35 of Words and

Phrases, Permanent Edition. According to the learned counsel this

definition has been found therein: -

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CP 778/2008 etc

“Every public office is created in the interest and for the benefit of
the people.”

Referring to American Jurisprudence, Second Edition, published

by Lawyers Cooperative Publishing Aqueduct Building Rochester,

New York, learned counsel has submitted as follows: -

“Every public office is created in the interest and for the benefit of
the people and belongs to them, thus a public office is a public
agency or trust created in the interest and for the benefit of the
people. Such trust extends to all matters within the range of the
duties pertaining to the office.”

He has also referred to page 331, Words and Phrases, Permanent

Edition, Volume 42-A of the above referred book, wherein public

office has been defined as under: -

“Public office is a public “trust” and the performance of the trust

may not be farmed out or delegated to one, not chosen directly or
indirectly by the citizens, and delegation, if any, can be only on the
permission of the legislative body which established the trust”.

82. Learned counsel for the petitioners with regard to

nomination has uttered these words: -

“….it is not strictly speaking a Holder of office (not yet) and is a

nominee for holder of office. It has even been held that a nominee is
also a quasi-public office”

He has also referred to the case of Supreme Court of Alabama,

(State of Alabama ex rel. W.E. Norrell, Jr. v. Fred KEY. 4 Div. 185

(276 Ala.524, 165 So.2d 76) wherein it was observed that “The

holder of a certificate of nomination has the status of a quasi

officer”.

83. In fact, the learned counsel has attempted to display

that the holder of certificate of nomination, attains the status of a

quasi officer. To say in different manner, learned counsel wants

to impress upon us that after the nomination papers of Mian

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CP 778/2008 etc

Muhammad Nawaz Sharif were accepted by the Returning

Officer, he had become a quasi public officer. Referring to page

24 para 16 of the case of Chairman RTA v. Mutual Insurance (PLD

1991 S.C.14), learned counsel has relied upon this sentence “A

public office is a public agency or trust created in the interest and

for the benefit of the people and since an incumbent of a public

office is invested with certain powers and charged with certain

duties pertinent to sovereignty, the powers so delegated to the

officer are held in trust for the people”.

84. He has referred to judgment in the case of Maqbool

Ahmed Qureshi v. Pakistan (PLD 1991 S.C. 484 from page 501) in

which it was held that “Offices which are regarded as sacred trust

are to be passed on to those who are entitled thereto Amanat

(Trusts) includes the offices of the Government.

85. As per learned counsel, the proposer and the

seconder are not bound to prove their locus standi because they

are defending the case as a shield and not filing, instituting or

using it as a sword, which does not require the same rights as are

necessary for a candidate. Referring to 1991 SCMR 2883

(Ardeshir Cowasjee v. KBCA), learned counsel submits that “the

concept of locus standi has been whittled down inasmuch as the

expression ‘sufficient interest’, inter alia, includes civic or

(community) environmental and cultural interests”. The meaning

of a person aggrieved “may vary according to the context” to

which liberal approach must be made. This concept has been

presented before us by him on the basis of Halsbury’s Laws of

England/Administrative Law (Volume 1(1) (2001 Reissue)/4,

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CP 778/2008 etc

Judicial Control/(1) The Ambit of Judicial Review/(iv). Further

relies upon [1981] 2 AllER 92, Inland Revenue Comr v. National

Federation and [1994] 4 AllER 329, R. v. Inspectorate of Pollution

and another exparte Greenpeace.

86. Beneficiary has got right to defend trust. For that

purpose he relies on Halsbury’s Laws, Vol. 48 at page 1082 (2007

Reissue) to submit that “if no trustee is willing to institute a

proper claim, the beneficiary may take proceedings for the

administration of the trust by the court and obtain an order for

liberty to use the trustee’s name, or for a receiver who will use the

trustee’s name, in the institution of a proper claim”. Touche v.

Metropolitan Railway Warehousing Company, (1871) L.R. 6 Ch.

App.671; Parker & Mellows: The Modern Law of Trusts, AJ Oakley

page 716; Fletcher v. Fletcher (1844) 4 Hare 67 and American

Jurisprudence Volume 76, page 670, 671.

87. The candidate represents the right, obligations and

aspirations of electors of a constituency. Refers to PLD 2007 S.C.

277 at page 283 A, 284 (Rana Shaukat Mahmood case)

Any defect in proposer’s credentials is fatal to the

candidacy of the aspirant. Rana Shaukat Mahmood’s case (PLD

2007 S.C.277), Muhammad Abbas v. Returning Officer (1993

MLD 2509), Qaiser Iqbal v. Ch. Asad Raza (2002 YLR 2401), Asif

Khan v. Returning Officer (2003 MLD 230), Mudassar Qayyum

Nahra v. Election Tribunal (2003 MLD 1089).

88. The law has given proposer and seconder an integral

role in the election process by rendering as disqualified a

candidate, if his proposer or seconder is disqualified.

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CP 778/2008 etc

89. He has also given the history of nomination of

candidate in the election which is not so much relevant so as to

reproduce it.

90. Referring to H. M. Saya’s case reported in PLD 1969

S.C. 65, learned counsel submits that a person can file an appeal

against an order which adversely affects a person’s an

independent and well recognized right.

91. Right to choose is more fundamental right than any

other right. Cites, American Constitutional Rights by William

Carroll & Norman Smith, 1991 University Press of America at

pages 705 -706.

92. With regard to provisions of Order I Rule 10 CPC

learned counsel has referred to PLD 1975 SC 463 (Islamic

Republic of Pakistan v. Abdul Wali Khan), PLD 2002 SC 615

(Ghulam Ahmed Chaudhary v. Akbar Hussain) and Civil Petition

1269 of 2008 (A.H. International (Private) Ltd. V. Federation of

Pakistan.).

93. On the basis of above addressed arguments learned

counsel has tried to justify the locus standi of proposer and

seconder to file an appeal, application under Order I Rule 10 CPC

in Writ Petition before the Lahore High Court and Civil Petitions in

this Court.

94. Learned counsel has also argued that in case the

trustee of a trust does not file a suit with regard to the trust
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CP 778/2008 etc

property, the beneficiaries can enforce the right belonging to

them which action is called a derivative action.

95. According to Black’s Law Dictionary Seventh Edition

by Bryan A. Garner ‘derivative action’ has been defined as under: -

“A suit by a beneficiary of a fiduciary to enforce a right belonging to

the fiduciary, a suit asserted by a shareholder on the corporation’s
behalf against a third party because of the corporation’s failure to
take some action against the third party. Also termed derivative suit,
shareholder derivative suit; stockholder derivative suit,
representative action. A law suit arising from an injury to another
person, such as a husband’s action for loss of consortium arising
from an injury to his wife caused by a third person”.

96. But the arguments of the learned counsel have failed

to convince us when it is found that still trust was not created by

the occupation of that alleged seat of trust. Unless trust is

completed in all respect, no beneficiary can claim any benefit

from an incomplete and inchoate alleged trust.

97. In the case of Yaselli v. Goff et. al reported in 12 F.2D

396 it was held that a Special Assistant to Attorney General of

the United States in the performance of duties was immuned

from malicious prosecution, therefore, the above referred case

was not applicable to the present case. It may be remembered

and noted that in Pakistan, we have got codified law with the

nomenclature of the Trust Act. 1882 (II of 1882), therefore, in the

presence of codified law, we do not desire to load our land laws

by the import of concept of others, who are not based on any

codified law as are ours. We must divert our attention towards the
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CP 778/2008 etc

law enacted and applicable to this Country. Section 3 of the Trust

Act, 1882 has been framed in the following sentences: -

“3. Interpretation clause – Expressions defined in Act IX of 1872: A

“trust” is an obligation annexed to the ownership of property, and
arising out of a confidence reposed in and accepted by the owner, or
declared and accepted by him for the benefit of another, or of
another and the owner :

The person who reposes or declares the confidence is called

the “author of the trust”; the person who accepts the confidence is
called the “trustee” the person for whose benefit the confidence is
accepted is called the “beneficiary”; the subject-matter of the trust is
called “trust-property” or “trust-money”; the “beneficial interest” or
“interest” of the beneficiary is his right against the trustee as owner
of the trust-property; and the instrument, if any, by which the trust is
declared is called the “instrument of trust”;

A breach of any duty imposed on a trustee, as such by any

law for the time being in force, is called a “breach of trust”.

98. There is another provision of section 6 which can be found

in the Trust Act, 1882, which is relevant and is reproduced as

under: -

6. Creation of trust : Subject to the provisions of Section 5, a trust is

created when the author of the trust indicates with reasonable
certainty by any words or acts (a) an intention on his part to create
thereby a trust, (b) the purpose of trust, (c) the beneficiary, and (d)
the trust-property, and (unless the trust is declared by will or the
author of the trust is himself to be the trustee) transfers the trust-
property to the trustee.”

99. From the above provision of section 6 of Trust Act,

1882, the following conditions are necessary for the creation of

trust: -

“A trust is created when

(a) the author of the trust indicates with reasonable
certainty, by words or acts, an intention on his part to
create thereby a trust;
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CP 778/2008 etc

(b) the beneficiary or beneficiaries are nominated

specifically;
(c) the trust property is indicated with reasonable certainty;
(d) except in the case of a trust declared by will or when
the author of the trust is himself to be the trustee, the
trust property is transferred to the trustee.”

100. Keeping in view the above definition and even the

concept/definition submitted by the learned counsel, an essential

ingredient of the trust is the transfer of trust property to the

trustee, which would be in the instant case the “public office”.

101. So from the above analysis, we have found that first

of all there must be an electorate who shall elect, which may be

called the beneficiary of the trust and the person (the candidate)

must be elected or chosen by that electorate, to become a trustee

and then creation of trust would be completed when public office

is occupied by that trustee (the returned candidate). In whole of

that process from the proposal, seconding, filing of the

nomination paper, the consent of the candidate (to become a

trustee) is necessary. The aforesaid candidate, “the trustee (in

future) must be a qualified person and not disqualified to contest

the election, and he must be prepared to give his consent for the

nomination, and by filing of those nomination papers with that

Returning Officer, he must be ready to contest the objections

raised against him, by the opposing candidate before the

Returning Officer, he must not withdraw or retire from the

election, after having successfully gone this process of scrutiny

from the Returning Officer, he must be prepared to contest the

election and all the proceedings, to reach to the post of trust to

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occupy it. If he successfully completes all this process, he would

become a returned candidate in consequence of election and

would occupy the concerned seat of public office. He would

become a public office holder (the trustee) after this exercise is

complete. It can also happen that after the successful completion

of all other steps of election process, on the date of holding of

election, he may withdraw, retire or loose the election in the

contest. In case of his defeat, he would not become a trustee, to

occupy the seat. The emphasis being provided is the completion

of all other steps for the creation of trust, which is a long process

and which has to be successfully completed by the candidate to

become a trustee of a public office. It may also be kept in view

that the proposer and seconder are not the sole beneficiaries of

the trust but after a candidate occupies the seat in the shape of a

returned candidate, due to majority choice/will of the electorate,

it is then that he would become a trustee of public office. This

also shows that all the voters of the area concerned/constituency

become beneficiaries collectively. No one can claim this right

solely or lonely by ignoring and excluding the others, because the

elected member becomes a representative of the voters/persons

of the constituency, a public property

102. Right of beneficiaries comes to light when a person is

elected, declared returned and is notified as such and occupies

the seat in consequence of that, otherwise there is no

presupposed right to be claimed by any voter before the returned

candidate holds the office. During the completion of election

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process, no case can be filed or defended for the qualifications

and disqualifications of the candidate by any alleged voter,

proposer and seconder before any court of law, as it would be an

amorphous right to have any recognition by any court of law.

103. It may be remembered that by proposing and

seconding, a candidate does not become a trustee. It is only a

step towards election and during that election, the candidate is

the person who has to defend his personal, inherent qualities,

qualifications and disqualifications. If the candidate is not

prepared to defend himself before any Tribunal and a court of

law, then no one including the proposer and the seconder can

compel the candidate to contest election by defending his

qualifications and disqualifications.

104. Mr. Justice (Retd.) Fazal Karim former Judge Supreme

Court of Pakistan in his treatise on “Judicial Review of Public

Actions” Volume 2, through his hard work, has beautifully quoted

and explained the doctrine of locus standi, as being followed in

England, doctrine of standing in America and from law of our own

land under Article 199 of the Constitution. To summarize all

those doctrines in America and England, we have gained

impression that in England under the English Legal System, the

courts are considered as judicial arm of the Government and do

not act on their own initiative. They have always reserved the right

to be satisfied that the applicant had some genuine locus standi

to appear before it. With the passage of time, it has now moved

forward from the test of “legal right” to one of “sufficient interest”

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and now it has been considered in the light of right of access to

justice and has become remarkably liberal particularly in public

interest litigation.

105. In America the doctrine of standing has been found with

these words: -

“that cases and controversies, adverse, substantial interest and real

questions are no more than trees behind which the Judges hide when
they wish either to throw stones at Congress or the President or to
escape from those who are urging them to do so”
“Whether a party has sufficient stake in an otherwise justifiable (that is
fit for adjudication) controversy to obtain judicial resolution of that
controversy is that has traditionally been referred to as the question of
standing to sue”.

“To satisfy the ‘case’ or ‘controversy’ requirement of Article III, which is

the ‘irreducible constitutional minimum’ of sanding, “a plaintiff must,
generally speaking, demonstrate that he has suffered ‘injury in fact’,
that the injury is ‘fairly traceable’ to the action of the defendant, and
the injury will likely be redressed by a favourable decision.”

106. Now we advert to our law of land, essential for filing

of a petition under Article 199 of the Constitution. Analytical study

of sub-article (1) can be better understood when it is kept in front.

So, it is reproduced as under: -

199. (1) Subject to the Constitution, a High Court may, if it is

satisfied that no other adequate remedy is provided by law, -
(a) On the application of any aggrieved party, make an order-
(i) directing a person performing, within the
territorial jurisdiction of the Court, functions in
connection with the affairs of the Federation, a
Province or a local authority, to refrain from doing
anything his is not permitted by law to do, or to
do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken
within the territorial jurisdiction of the Court by a
person performing functions in connection with
the affairs of the Federation, a Province or a local
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authority has been done or taken without lawful

authority and is of no legal effect; or
(b) On the application of any person, make an order—
(i) directing that a person in custody within the
territorial jurisdiction of the Court be brought
before it so that the Court may satisfy itself that he
is not being held in custody without lawful
authority or in an unlawful manner; or

(ii) requiring a person within the territorial jurisdiction

of the Court holding or purporting to hold a public
office to show under what authority of law he
claims to hold that office; or
(c) on the application of any aggrieved person, make an order
giving such directions to any person or authority, including any
Government exercising any power or performing any function in, or
in relation to, any territory within the jurisdiction of that Court as
may be appropriate for the enforcement of any of the Fundamental
Rights conferred by Chapter 1 of Part II.”

107. From the simple reading of the above provision, it is

evident that there are three main parts noted in Sub-Article (1) of

Article 199 of the Constitution. Clause (a) of Sub-Article (1) of

Article 199 of the Constitution has conferred jurisdiction upon the

High Court with regard to writs of certiorari, mandamus and

prohibition, in clause (b) habeas corpus and writ of quo warranto

are provided, while in clause (c) jurisdiction to enforce the

fundamental rights conferred by Chapter I of Part II of the

Constitution has been invested with the High Court. All these

three main divisions have got interesting commencement with

the words “on the application of any aggrieved party” in clause

(a), “on the application of any person” in clause (b) and in case of

clause (c) the words are “on the application of any aggrieved

person”. According to our own view, all these words noted in

clauses (a) (b) and (c) of sub-Article (1) of Article 199 of the
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Constitution, have got important meanings and connotations. The

use of different words “any aggrieved party”, “any person” and

“any aggrieved person” have not been used in oblivion of their

meanings and implications.

108. It is also interesting to note that word “aggrieved” is

noted in clauses (a) and (c) in a prefix form to the words “party”

and “person” but in clause (b) word “aggrieved” has been omitted

knowingly. The use of words ‘party’ in clause(a) and ‘person’ in

clause (c) have been differently used. Why these different words

are occurring, in all these (a), (b) and (c) divisions, there is

philosophy behind it. The power and jurisdiction of certiorari,

mandamus and prohibition can be initiated and commenced on

the application of any ‘aggrieved party’. Words ‘aggrieved’ and

‘party’ are significant, the meaning of which are to be unearthed

from the Black’s Law Dictionary, an authentic Dictionary providing

the definitions of legal words and terms. “Aggrieved party” at

page 1144 is defined as :-

“A party whose personal pecuniary, or property rights have been

adversely affected by another person’s actions or by a court’s
decree or judgment.”

While word “party” has been noted with the following

meanings: -

“Party. 1. One who takes part in a transaction <a party to the

contract>”.
“2. One by or against or against whom a lawsuit is brought <a party
to the lawsuit>.”

109. From the above noted definition, it is explicit and

transparent that it refers to a party by or against whom a law suit

was brought which law suit may encircle a proceeding also. In

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other words, an aggrieved party can be termed a person who was

party to a law suit or to any proceeding. If a person natural or

legal was not a party to the proceedings and personal, pecuniary

interest or property rights were not adversely affected by the

action of the authority, tribunal, court, decree, order or judgment,

that person natural or juridical would not fall within the ambit of

“aggrieved party”.

Vide 1970 SCMR 681 (Yousuf Ali V. Fazal M. Malik

and 3 others), it was held that a person who was not party before

the Tribunals below could not claim right to be impleaded as party

in the writ proceedings.

1994 CLC (AJ&K) 1108 (Jammu and Kashmir Council

for Human Rights through Secretary, Rawalpindi and another v.

Secretary, Azad Jammu and Kashmir Legislative Assembly

Muzaffarabad and 4 others), is the case wherein elector was not

permitted to maintain constitutional petition on behalf of

deseated member who had not filed that petition himself.

In 1994 CLC (Lahore) 2318 (Mian Muhammad Nawaz

Sharif v. Federation of Pakistan through Secretary, Ministry of

Defence, Government of Pakistan, Islamabad and 8 others) it was

observed as under: -

“Constitutional petition can be filed only by a person aggrieved---

Relief granted must be in relation to grievance of said aggrieved
person and not the grievance of any third person---).”

Vide also PLD 1998 Karachi 189 (Percy Robinson and

others v. Reverend Bashir Jiwan and others) and PLD 2008 S.C.

30 (Jamat-e-Islami through Amir and others v. Federation of

Pakistan and others)

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110. It is material for obtaining writ of prohibition,

mandamus and certiorari that the party which is seeking the relief

under clause (a) of sub-article (1) of Article 199 of the

Constitution must be an “aggrieved party”. If party applying is not

interested in the performance of any act which may be in the

nature of declaring, prohibiting or issuing direction, in that case

that party would have no right to file the application under clause

(a) of sub-article (1) of Article 199 of the Constitution. The word

“aggrieved” has presupposed grievance to the party concerned.

Therefore, if a person was party to the proceedings before any

authority, tribunal, officer or court, but afterward, he had got no

grievance to file or defend the writ petition, it would not be

competent to file writ of certiorari, mandamus or prohibition, as

the case may be, by any other person, than the person who was

party to that proceedings. To say in other words, a party must

establish that he was aggrieved from the proceedings taken by

the person performing functions in connection with the affairs of

the Federation, Province or Local Authority or was refraining from

doing anything which he was required by law to do and doing a

thing which was not permitted by law to be done.

111. In sub-clause (ii) of clause (a) of sub-article (1) of

Article 199 of the Constitution, a declaration can be sought by a

party who is aggrieved by an act or proceeding taken by a person

performing functions in connection with the affairs of the

Federation, a Province or a Local Authority, if that act done was

without lawful authority and of no legal effect. This declaration

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also requires the party applying under Article 199 of the

Constitution to satisfy the court that he was aggrieved by that act

or proceeding referred to above, otherwise he would not be

granted any relief of writ of mandamus, prohibition or certiorari.

In the present case, the proposer and seconder and other

applicants have not been able to establish that they were

aggrieved party as expounded above, because it is the right of the

candidate himself to contest or not to contest. If the candidate

wishes to contest the election and any order, act, by any authority

referred to in the above noted provision, comes in his way, it is the

candidate who can be called the aggrieved party and not any

other person. If a candidate refuses to contest, the proposer,

seconder and all other applicants can not file a petition in the

High Court to force the candidate to contest the election or to

defend him in any such proceedings before any court or tribunal.

If these intervenors have got no right to compel a candidate for

the above noted purposes, then how they can be allowed and

permitted to file a petition, may be in defence or it may be in the

shape of filing of the writ petition. Accordingly, we do not consider

and cannot hold all these applicants to be aggrieved party and

having right to invoke the jurisdiction of the High Court. The

impugned order dated 20.6.2008 has, therefore, been rightly

passed.

112. In Part (b) of sub-article (1) of Article 199, the word

‘any person’ has been used and condition of “aggrieved” has not

been attached to such person, therefore, for the invocation of

those reliefs mentioned in sub-clauses (i) and (ii) of clause(b) of

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sub-article (1) of Article 199 of the Constitution, any person who

may or may not be aggrieved can file an application. He is not

required to demonstrate his right to move the court for the

purposes noted in sub-clauses (i) & (ii) of clause (b) of sub-article

(1) of Article 199 of the Constitution.

113. The word “aggrieved” in clause (c) of sub-article (1) of

Article 199 of the Constitution has got the same meaning as

noted above for clauses (a) of sub-Article (1) of Article 199 of the

Constitution but the word “person” with the affixing word “any

aggrieved” has declared that for filing of application under clause

(c) of sub-article (1) of Article 199 of the Constitution, it is not

necessary that there must be prior or previous law suit or

proceeding for the person invoking the jurisdiction of High Court.

Any person who has got complaint with regard to the matters

noted above in clause (c) can file an application, if he is aggrieved

by any action, order or proceedings, having been done, performed

or made in violation of Fundamental Rights, for the enforcement

of it as conferred by Chapter I of Part II of the Constitution.

114. From the above discussion we have found that all

these applicants including the proposer and seconder, cannot be

called “aggrieved party” giving them a right to file a writ petition

or to be impleaded in the writ petitions, filed before the Lahore

High Court, Lahore. As the impugned order has been passed

correctly in legal term by holding them not “an aggrieved party”,

these civil petitions for leave to appeal cannot be entertained in

this Court also.

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(5) APPLICATIONS UNDER ORDER I RULE 10 OF THE C.P.C.

115. Mehr Zafar Iqbal and Shakeel Baig, the proposer and

the seconder and other applicants, had filed applications under

Order I Rule 10 CPC in Writ Petition No.6468 of 2008 filed by

Noor Ellahi against Mian Muhammad Nawaz Sharif etc. and in

Writ Petition No.6469 of 2008 filed Syed Khurrum Shah against

Mian Muhammad Nawaz Sharif and others.

116. Before the discussion is made with regard to the

status of the applicants to move such applications in the writ

petitions indicated above, it is necessary to mention that both

these petitioners, Mehr Zafar Iqbal and Shakeel Baig, the

proposer and the seconder had not filed any application before

the learned Election Tribunal in the Election Appeal filed by Noor

Ellahi against the acceptance of nomination papers of Mian

Muhammad Nawaz Sharif by the Returning Officer for making the

defence of Mian Muhammad Nawaz Sharif. There is no

explanation as to why they had not come forward to claim their

right of proposing and seconding at that stage, to defend the

candidature of Mian Muhammad Nawaz Sharif. It was for the first

time that they and other applicants had filed applications in both

the above mentioned writ petitions for their impleadment.

117. There is another important fact to be noted, that in

the election appeal, Mian Muhammad Nawaz Sharif, the

candidate himself had opted not to defend himself before the

Election Tribunal. Due to this lapse, it can easily be inferred that

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Mian Muhammad Nawaz Sharif, the candidate had opted not to

contest the election, otherwise he would have come forward to

defend the election petition which was going to result into the

passing of an order of disqualifying him to participate in the

election. The same attitude was adopted and maintained by him

even in the above mentioned writ petitions although he was made

a party to the writ petitions but due to his non-appearance the

exparte proceedings were ordered by the learned Full Bench of

the Lahore High Court, Lahore.

118. Question arises as to whether the candidate who does

not want to contest the election by defending his personal right of

qualification and disqualification, the applicants can be allowed

to defend that candidate? Answer would be in the negative

because the aggrieved party is candidate and not the proposer

and the seconder, or any other voter.

119. According to the provision of Order I Rule 10 CPC, the

proper party is that party whose presence before the Court is

necessary to enable the court to effectually and completely

adjudicate upon and settle all the questions involved in the

proceedings. In other words, the following circumstances are the

essentialities for a person to be impleaded as a proper party in

any Court: -

(i) the court considers that presence of that party is

necessary for the purpose of complete and effectual

adjudication. Thus, it is the satisfaction of the court

itself not of the party. It is the court who feels inability

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without the presence of that party, whereas in the

present case, no such feeling was expressed by the

court;

(ii) the presence of that party must be for the purposes of

adjudication and settlement of all the questions

involved in the proceedings. In the writ petitions,

admittedly the qualifications and disqualifications of

the candidate were involved , which questions had got

intimate relations with the personal inherent rights of

the candidate. The presence or absence of

intervenors could not have any repercussion upon the

effectual and complete adjudication of those

questions involved in the writ petitions. The candidate

himself could defend by asserting or refuting the

objections, raised to his personal qualifications and

disqualifications. The intervenors are not concerned

with those personal inherent abilities and disabilities

of the Election.

(iii) Noor Ellahi and Khurrum Shah had filed writ petitions

and they can be considered to have the role of

plaintiff of a law suit. In the suits filed before any

court, a plaintiff has got right of “dominus litus”

meaning thereby that a plaintiff can not be compelled

to sue a person against whom he does not claim any

relief in that suit. This principle of “dominus litus” can

be availed of by the writ petitioners and they can not

be compelled to array the intervenors in their writ

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petitions against their wish because the writ

petitioners do not want to claim any relief against

them. Question arises at this juncture as to whether

these intervenors can file writ petitions independently

defending their candidate before the Lahore High

Court, Lahore. The reply would be in clear terms “no”

because these intervenors, as noted above cannot be

considered “an aggrieved party” to obtain declaration

with regard to qualification and disqualification of

other, as provided by clause (a) of sub-article (1) of

Article 199 of the Constitution. In these

circumstances dismissal of applications under Order I

Rule 10 CPC of these intervenors was rightly made.

120. It may be recapitulated that according to section 14

of the Act, after the proposing and seconding is made and the

consent is given by the candidate to his nomination papers by

declaring his eligibility to the Returning Officer, the order passed

accepting or rejecting the nomination paper can by challenged

only by the candidate according to subsection (5) of section 14 of

the Act. The law having restrained the proposer and the seconder

after passing of order of Returning Officer from taking any action

in the shape of filing of appeal before the election tribunal, the

intervenors can not come forward to defend their candidate

because their right having extinguished by the rule of merger in

the right of the candidate, which would become non-existent

giving no legal right to defend their candidate in any further

proceedings.
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(6) CONSTITUTION OF LARGER BENCH AND

HEARING FROM SELECTIVE JUDGES.

121. Petitioners have prayed for the constitution of larger

Bench to decide the questions raised in the instant case. One of

the reasons adduced by these petitioners is that there was

conflict of views between two Benches consisting of 4 judges

versus a Bench of 5 Judges and the other reason was involvement

of interpretation of provisions of section 14 (5-A) and (6) of the

Act.

122. We have found that both these contentions are not

sound to be accepted because to constitute a larger Bench

Hon’ble Chief Justice has got the prerogative, the status of whom

the petitioners do not acknowledge. In such an event, the judges

selected for constitution of larger Bench would not be accepted by

the petitioners. The question of constitution of larger Bench is the

prerogative of the Hon’ble Chief Justice of the Court as was held

in PLD 2002 S.C. 939 (Supreme Court Bar Association v.

Federation of Pakistan wherein it was clearly laid down as a

principle that it was the sole prerogative of the Hon’ble Chief

Justice to constitute a Bench of any number of Judges to hear a

particular case. Neither an objection can be raised nor any party is

entitled to ask for constitution of a Bench of its own choice.

123. While considering the provision of Order XI and Order

XXXIII Rule 6 of the Supreme Court Rules, 1980, it was laid down

in PLD 1997 S.C. 80 (In re: M.A. No.657 of 1996 in References

Nos.1 and 2 of 1996) that no litigant or lawyer can be permitted

to ask that his case be heard by a Bench of his choice, for it is the
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duty and privilege of the Chief Justice of the Supreme Court to

constitute Benches for the hearing and disposal of cases coming

before the Court. In Malik Hamid Sarfaraz V. Federation of

Pakistan and another (PLD 1979 S.C. 991) it was held that no

litigant or the lawyer can be permitted to ask that a case be heard

by a Bench of his choice. In Malik Asad Ali and others v.

Federation of Pakistan (PLD 1998 S.C. 161) it was held that “the

qualification to hold the office of the Judge is indeed discretion

and has nothing to do with his performance as a Court or a

Member of the Court.

124. In PLD 2005 S.C. 186 (Ch. Muhammad Siddique and

2 others v. Government of Pakistan, through Secretary, Ministry of

Law and Justice Division, Islamabad and others) it was held: -

“…it was not the right of petitioner/appellant to select the Judges of

their own choice---To constitute a Bench was a prerogative of the
Chief Justice and the parties could not ask for a Bench of their
choice”.

125. Moreover it has been admitted by the petitioners that

the latest view has been delivered by five Hon’ble judges of this

Court. In these circumstances, how the Bench of three Judges can

take different view as against the judgment of five Hon’ble

Judges. PLD 2004 S.C. 600 (All Pakistan Newspapers Society and

others v. Federation of Pakistan and others) is the answer to it,

wherein it was held that a Bench of three judges could not take

different view from the Bench of five Judges.

126. It is notable that the plea of bias, and desirability of

constitution of a larger Bench are based on flimsy grounds,

particularly when the petitioners, as noted earlier, are not

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accepting/acknowledging the authority and status of all the

Judges of the Supreme and of the Hon’ble Chief Justice, then how

they can pray for the constitution of a larger Bench of their own

choice to be made available to them.

(7) QUALIFICATIONS AND DISQUALIFICATIONS.

(i) CONVICTIONS

127. The definition with regard to qualification and

disqualification has already been given under the heading of

Locus Standi, therefore, it is not being reiterated herein.

128. The objections which have been raised against Mian

Muhammad Nawaz Sharif, with regard to his disqualifications, by

contesting candidates/the applicant by filing application under

section 14(5-A) of the Act, Shahid Orakzai, the applicant and the

other source as narrated by learned counsel and gleaned from the

records are: -

(i) Mian Muhammad Nawaz Sharif was convicted in

aeroplane hijacking case, special case No.385/1999,

registered under section 402-B PPC read with section

7 of the Anti Terrorism Act, 1997. The conviction and

sentence was announced by Anti Terrorism Court I,

Karachi on 30.10.2000. Mian Muhammad Nawaz

Sharif was sentenced to life imprisonment and was

imposed a fine of Rs.5, 00,000/-, in default whereof

he has to suffer further imprisonment for 5 years on

the first, and similar sentence on the second count.

This conviction sentence was upheld by the learned

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appellate court and Special Criminal ATA Appeal

No.43 of 2002, which judgment was published in PLD

2002 Karachi 152 (Muhammad Nawaz Sharif v.

State).

(ii) He was also convicted by learned Accountability Court

Attock Fort, in Reference No.2 of 2000 decided on

27.7.2000, under section 10 read with section 9(a)(5)

of the National Accountability Bureau Ordinance and

was sentenced to R.I. for 14 years with fine of Rs.20

millions. In case of non-payment, he was ordered to

undergo further R.I. for three years. He was further

declared to be disqualified for 21 years for seeking or

being elected, chosen, appointed as member or

representative of any public office or any authority of

the Local Government of Pakistan.

129. It has been argued by the learned counsel that under

Article 45 of the Constitution, sentence and convictions were

pardoned by the President of Pakistan, therefore, these

judgments could not impede the way of Mian Muhammad Nawaz

Sharif to file the nomination papers as this disqualification had

disappeared with the above noted pardon.

130. We have considered the arguments of the learned

counsel. To understand the extent of pardon, reprieve and respite,

and to remit, suspend or commute any sentence passed under

Article 45 of the Constitution, the provision of Article 45 of the

Constitution is necessary to be reproduced in this judgment which

is as under: -
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“45. The President shall have power to grant pardon, reprieve and
respite and to remit, suspend or commute any sentence passed by
any court, tribunal or other authority.”

131. If we consider and presume, the argument of the

learned counsel to be factually correct, question arises as to

whether President of Pakistan under Article 45 of the Constitution

could grant pardon in respect of the conviction or only for the

sentence. The words in Article 45 of the Constitution after the

words power to grant pardon…………..and “any sentence” are

indicative of remarkable worth and consequence. The framer of

the Constitution had used the word “sentence” only and not the

conviction. Difference between “conviction” and “sentence” in

legal phraseology is evident. The conviction is declaration of a

person found guilty, while the sentence follows after a person is

declared convict, which sentence may be in different forms as

prescribed by the relevant laws. To dilate upon it, the President

has got power to grant pardon etc. only with regard to the

sentence but has got no power to set aside the declaration of guilt

(conviction) as recorded by a competent Court, authority or

Tribunal. The conviction can only be set aside by the Court,

Tribunal or authority, concerned or the competent or superior

court to that Court or forum, as provided by law against that

conviction. The concept of conviction and sentence having two

different connotations, can be found in AIR 1995 HP 130 (Vikram

Anand v. Rakesh Singha) in which case after a convict was

sentenced and appeal was filed by him before the learned

appellate court, the execution of sentence was suspended, but

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the court had declared the conviction and disqualification still

remaining in existence, as conviction being a different concept, so

it was still continuing in operation.

132. In PLD 1990 S.C. 823 (Abdul Kabir v. The State) the

following was held: -

“Pendency of the appeal for decision does not ipso facto mean that the
conviction is wiped out. The appellate Court has no authority under section
426 to suspend the conviction. Conviction and sentence connote two
different terms: Conviction means proving or finding guilty. Sentence is
punishment awarded to a person convicted in criminal trial. Conviction is
followed by sentence. It cannot be accepted as principle of law that till
matter is finally disposed of by Supreme Court against convicted person,
the conviction would be considered as held in abeyance. This interpretation
is not in consonance with the spirit of law and against logical coherence.
The suspension of sentence is only a concession to an accused under
section 426, Cr.P.C. but it does not mean that the conviction is erased.”

133. It may be noted that under section 15 of the NAB

Ordinance, 1999 as stood at the time of pronouncement of

sentence, the Accountability Court was granted power to

disqualify a person convicted for the offence of corruption and

corrupt practices. In that judgment of Accountability Court, Mian

Muhammad Nawaz Sharif was disqualified for 21 years to

become member of the Assembly. There was no power granted

by the Constitution to the President, to condone this

disqualification order, by grant of pardon. Therefore, even if it be

presumed for the sake of consideration, that conviction and

sentence recorded in both these cases, were set aside by the

President under Article 45 of the Constitution, even then

pardoning of this disqualifying power was never granted or

conferred upon the President by the Constitution, hence this

disqualification had remained in the field.

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134. Mr. Muhammad Akram Sheikh, learned counsel has

made an attempt to defend the convictions by stating that

assuming the convictions were there, even then those convictions

were not creative of bar as against the candidate because clauses

(h) and (l) of sub-article (1) of Article 63 of the Constitution, as it

stood at the time of conviction had provided that after a period of

five years from the release, the conviction would not be

applicable, if in the opinion of C.E.C., the offence committed had

involved offence of moral turpitude and it would not be

considered as a disqualification. He has further explained clause

(l) of sub-article (1) of Article 63 of the Constitution. According to

him, even in the case of corrupt or illegal practices, if a period of

five years has elapsed from the date on which that order of guilt

had taken effect, it would not be a disqualification restraining the

candidate to contest the election.

135. From the above argument, it has been established

that Mian Muhammad Nawaz Sharif was convicted in both the

above noted cases. The plea being raised is that those convictions

cannot be considered as disqualification after the lapse of 5 years

from the release in cases involving moral turpitude and for the

guilt of corrupt or illegal practice from the date of order of

conviction. Whether this stance taken by the learned counsel is

legally correct, we have to examine the law on this aspect. Dr.

Mohyuddin Qazi, learned ASC has replied that Article 63 of the

Constitution was amended by Legal Framework Order 2002

(Chief Executive Order 24 of 2002) and it was clearly held in PLD

2002 S.C. 369 (Imtiaz Ahmed Lali v. Ghulam Muhammad Lali)

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that the amendment in Article 63 of the Constitution as made by

Legal Frame Work Order as well as in section 99(1)(a)(i) of the

Act, alongwith amendment of Article 8(3d)(1) of the Code of

Conduct of General Election Order, 2002, its effect would be

retrospective in effect. Therefore, Mian Muhammad Nawaz Sharif

was not qualified to contest the election, as the amendment

brought in clause (h) and (l) of sub-article (1) of Article 63 of the

Constitution had erased the time limit from these clauses and

also the seeking of opinion from the Chief Election Commissioner.

To have the benefit of these provisions, both clauses (h) and (l) in

the year 1985 introduced through substitution by Revival of the

Constitution of 1973 Order, 1985(P.O.No.14 of 1985) were as

under: -

(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)…………………………………………
(j)..................................................
(k)………………………………………..
(l) He is found guilty of a 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

136. But after the substitution through Legal Framework

Order 2002, clauses (h), (l) and (q) were in the following shape: -

(h) He has been convicted by a court of competent jurisdiction

on a charge of corrupt practice, moral turpitude or misuse of power
or authority under any law for the time being in force; or
(i)…………………………………………..
(j)…………………………………………..
(k)………………………………………….
(l) He is found guilty of a 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

(q) He has obtained a loan for an amount of two million rupees

or more, from any bank, financial institution, cooperative
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society or cooperative body in his own name or in the name

of his spouse or any of his dependents, which remains
unpaid for more than one year from the due date, or has got
such loan written off; or

137. On the basis of the above noted amendment and

mentioned judgment, the argument of the learned counsel for the

petitioners has lost its force.

(ii) TWENTY ONE YEAR DISQUALIFICATION

138. There is another aspect of disqualification on the

basis of conviction and sentence recorded by Accountability Court.

The NAB Ordinance, 1999 became the part of the Constitution

under Sixth Schedule which allowed its continuation and

adaptation of certain laws in force. In the judgment dated

22.7.2000 of the Accountability Court in para 54, Mian

Muhammad Nawaz Sharif having been held guilty of corrupt

practices and corruption was disqualified to contest the election

or being elected, chosen, appointed or nominated to any public

office or local authority of Government of Pakistan for 21 years

under section 15 of the NAB Ordinance, 1999, which disqualifying

order was never pardoned or got erased from the legal character

of the candidate. It may be pointed out here that it was for the

candidate to dislodge and refute these objections with regard to

the qualifications and disqualifications.

(iii) BREACHED COVENANT

139. It has also been argued that Mian Muhammad Nawaz

Sharif had left this country with an agreement to stay out of

Pakistan for 10 years. This covenant was signed on 2nd of

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December 2000 by Mian Muhammad Nawaz Sharif and on 5th of

December 2000 by Mian Muhammad Shahbaz Sharif. Copy of

which has been appended with CPLA No.778 of 2008. It has also

been argued that under section 401(5A) of Cr.P.C. the pardon was

conditional and this condition was to be fulfilled by the candidate

as this condition was to be considered to have been imposed by a

competent court and was enforceable accordingly. Therefore,

Mian Muhammad Nawaz Sharif was not qualified to contest the

election unless a period of 10 years as undertaken had expired in

accordance with provision of section 401(5-A) of the Cr.P.C.

(iv) UNPAID LOANS.

140. It has been argued by the learned counsel for Noor

Ellahi that Mian Muhammad Nawaz Sharif and Mian Muhammad

Shahbaz Sharif had obtained loans from Consortium of Banks but

had not paid back the amount since 1994. He has referred to a

document of “project brief” dated 22.5.2008 to display that both

these brothers had got different loans for their Foundries, Mills

etc. but had not paid back the amount till today. Learned counsel

has also submitted that suits were filed by the creditors banks

and during the pendency of those suits, in the year 1998, it was

settled that the units would be surrendered as assets to the

claims of the bank and after the sale of these units amount would

be adjusted towards the loan. When a committee was constituted

by the Lahore High Court, Lahore and a bid of Rs.2.48 billion was

offered for these units, in order to defeat the compromise/

settlement with malafide intention and through deceitful means

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instead of payment of the loans, objection petitions were got filed

in breach of the settlement and till today not a single penny was

paid or realized, therefore, Mian Muhammad Nawaz Sharif was

also disqualified on this count.

(v) BANK SUITS

141. To ascertain as to whether this allegation of the

contestant candidate was based on truth or not, we had also sent

for the copies of suits, filed by these banks from where it has

been found that: -

(i) Suit bearing No.C.O.S. 40 of 1998 was instituted in

the year 1994, for the recovery of 6.8 million as on
30.9.1994 vide UBL v. Itifaq Group and others,
(ii) Suit COS No.37 of 1998 for recovery of Rs.1072.227
millions alongwith other charges etc. as stood on
31.10.1994 (NBP v. Itifaq Foundries and others). In
both the above suits, Mian Muhammad Nawaz Sharif
and Mian Muhammad Shahbaz Sharif were also
defendants
(iii) Suit COS No.42 of 1998 (NBP V. Itifaq Brothers (Pvt.)
Limited and three others) for recovery of 355.463
million alongwith other charges etc, and;
(iv) Suit COS No.129 of 1998 (HBL v. Ittifaq Foundries
and others) for recovery of Rs.34,72,33,046.83
alongwith other charges etc., as stood on 31.10.1994
were filed. In the last two suits, only Mian Muhammad
Shahbaz Sharif was one of the defendants.

142. All these suits have been found pending from 1994,

without any material progress. From the perusal of plaints of

those suits, it has revealed that the loan facilities were in fact
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obtained from these creditor banks earlier to the year 1994, yet

the amount was not paid even after the passage of more than 15

years from the filing of the suits. It has further revealed from the

contents of plaints that to gain these loans personal guarantees

were executed by both these brothers also.

143. This allegation of unpaid loans, if is further dug out,

we have found its nexus and link with the judgment, reported in

PLD 2000 S.C. 869 (Zafar Ali Shah v. Pervez Musharraf, Chief

Executive) (a judgment delivered by 12 Hon’ble judges) alongwith

some other allegations, but at page 1133 the following passage

is relevant, which is reproduced as under: -

“ILLEGAL EXTRACTION OF HEAVY AMOUNT BY MIAN NAWAZ SHARIF,

SHEHBAZ SHARIF AND HIS FAMILY MEMBERS FOR THE FOLLOWING UNITS
OWNED BY THEM.

S.NO. NAME OF UNIT OUTSTANDING

LIABILITY
(In Million)
1. Ittefaq Foundries Ltd. 1,556
2. Ramzan Sugar Mills Ltd. 623
3. Haseeb Waqas Sugar Mill Ltd. 543
4. Mehran Ramzan Textile Mill 455
5. Ramzan Bukhsh Textile Mill 373
6. Brothers Sugar Mills Ltd. 351
7. CH. Sugar Mills Ltd. 339
8. Ittefaq Sugar Mills Ltd. 313
9. Ittefaq Brothers Ltd. 226
10. Sandalbar Textile Mills Ltd. 205
11. Khalid Siraj Textile Mills Ltd. 191
12. Hudabiya Engineering Co. Ltd. 182
13. Brothers Textile Mills Ltd. 174
14. Ittefaq Textile Mills Ltd. 164
15. Brothers Steel Ltd. 159
16. Hamza Board Mulls Ltd. 153
17. Hudabiya Paper Mills Ltd. 134
18. Ilyas Enterprises Ltd. 3
19. Ittefaq Hospital Trust 2
Total: 6,146

.”
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144. So, it has become evident from the above allegations

that the candidate who has opted not to defend this case either

has no case to dislodge the allegations of unpaid loans or for the

reasons best known to him, he has avoided to appear. The result

of it would be that keeping in view the judgment of PLD 2000 S.C.

869(ibid). Suits of different banks mentioned above, and the

“Project Brief” dated 22.5.2008, it is apparent that the candidate

had not paid the loan secured by him alongwith his associates. At

this stage, the following words are manifesting our passion:-

“A poor is hauled up for a penny only.

A rich is allowed let off for billions.
We can’t be contributory to this injustice.
As it is injustice to this poor nation”.

145. Therefore, on this count also, the candidate has been

found disqualified to contest the election, due to provision of

Article 63 (q) of the Constitution, section 14(5-A), section 12(2)(c)

read with section 99(1)(s) of the Act.

(vi) PROPAGATING OPINION AGAINST JUDICIARY

146. It has been argued that Mian Muhammad Nawaz

Sharif and Mian Muhammad Shahbaz Sharif, both brothers have

been propagating opinion with regarding to integrity,

independence of judiciary and are also ridiculing and defaming

the judiciary. According to clause (g) of sub-article (1) of Article 63

of the Constitution, they may be declared disqualified to contest

election.
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147. Mr. Ahmed Raza Qasuri, has referred to news items

attributed to both these brothers published in various

newspapers: -

(1) Daily Express dated 24.6.2008: -

(2) A clipping from Daily Khabrain dated 13th June 2008 is in

the following terms: -

(3) In clipping of 28.6.2008 Daily Jang, Rawalpindi following

was allegedly uttered by Mian Muhammad Nawaz Sharif: -

(4) According to clipping of Daily Khabrain Islamabad/

Rawalpindi dated 12.12.2008 the following words were uttered

by Mian Muhammad Nawaz Sharif: -

(5) In clipping dated 13.12.2008 published in Daily Jinnah

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Islamabad/Rawalpindi Mian Muhammad Nawaz Sharif uttered

the following words: -

(6) Clipping of Daily Express dated 29th Jaunary 2009 reads as

under: -

(7) Clipping from Nawa-i-Waqqat, Lahore dated 29th January

2009 reads as under: -

(8) Clipping from The Nation dated 29th January, 2009:-

“Nawaz says PCO judges ineligible”

148. As the candidate to whom these news items are

attributed has not appeared to rebut these news clippings noted

above, ex-facie the case would fall under Article 63(g) of the

Constitution.

(vii) PENDING CONTEMPT CASE – FALSE DECLARATION

149. Mr. Shahid Orakzai, has submitted that Mian

Muhammad Nawaz Sharif had submitted false declaration before

the Returning Officer in the earlier election as well as in the by-

election because in case titled Shahid Orakzai v. Pakistan Muslim

League (Nawaz Group) and 8 others (2000 SCMR 1969) Criminal

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Appeal No.162 of 1999 (appeal in respect of rowdyism in the

Supreme Court premises). This Court had passed the following

order: -

“ We find that without substantial compliance of section 7 of the Contempt of

Court Act, 1976 no proceedings for contempt can be initiated against PML
(N) or Mian Muhammad Nawaz Sharif or their other leaders allegedly involved
in the act of rowdyism. The matter requires a thorough probe which course of
action was not resorted to earlier. The ends of justice would be fully met, if
further proceedings against respondent No.1 are also deferred till a thorough
investigation is made by the Investigating Agency concerned as to the
culpability or otherwise of respondent No.1 as also any other person who may
be found so involved. The Registrar of this Court shall supply a print of video
film prepared by B.B.C. and of the film prepared by the Closed Circuit System
installed in the Supreme Court premises to the Inspector General of Police,
Islamabad, who shall entrust the investigation to a senior police officer, not
below the rank of Superintendent of Police. The Investigating Agency shall
complete the investigation within a period of four months from the receipt of
the copy of this order so as to identify the miscreants involved in the incident
and thereafter proceed in accordance with law”.

150. As per Shahid Orakzai, the investigation was

conducted by Mr. Taimur Ali Khan, PSP with regard to the

culpability or otherwise of Mian Muhammad Nawaz Sharif, his

brother Mian Muhammad Shahbaz Sharif and others, and a report

was submitted in this Court. In that report dated 23.2.2001, it

was found that Mian Muhammad Nawaz Sharif, President PML

(N) and the then Chief Minister Shahbaz Sharif had facilitated 100

to 150 persons to attack on this Court and the bill of their meals

etc. were paid by the Chief Minister House, Lahore on

10.12.1997. This report was submitted in the office of the

Supreme Court but it was not unveiled due to an earlier high

Official of the office, who was in league with these brothers. As

per Shahid Orakzai, the aforementioned Criminal Appeal No.162

of 1999 was still pending on the basis of that report and it was
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never finally decided as the action/proceedings were still to be

commenced on the basis of that report. Without discussing the

authenticity or otherwise of the arguments of Shahid Orakzai, it is

quite certain that this criminal appeal being a pending case,

against Mian Muhammad Nawaz Sharif, It was to be mentioned in

his declaration filed with the nomination paper but it was

omitted, therefore, Mian Muhammad Nawaz Sharif was

disqualified for filing of incorrect declaration.

151. The fact of earlier order of rejection of Nomination

Papers of Mian Muhammad Nawaz Sharif in the General Election

which order had attained finality was suppressed and false

declaration was submitted.

(viii) MISCELLANEOUS APPLICATION TO C.E.C.

152. It has further been submitted by the learned counsel

that against the rejection of nomination papers dated 3.12.2007,

during the General Elections, Mian Muhammad Nawaz Sharif had

transmitted a miscellaneous application dated 7.12.2007,

maligning the judges of the superior Courts, which miscellaneous

application was rejected by the Chief Election Commissioner on

17.12.2007, holding that appeal against the rejection order was

competent.

153. In fact, the Returning Officer who accepted the

nomination papers of Mian Muhammad Nawaz Sharif had acted

in such a manner which order could not be termed as having been

passed with impartiality. It is not presumable that the Returning

Officer who was judicial officer was unaware of the above noted

judgments, one of which was reported in the law journal also as

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noted above. According to learned counsel, all these above

mentioned facts were brought to the notice of Returning Officer

but the Returning Officer kept it aside while deciding the

Nomination Papers of Mian Muhammad Nawaz Sharif.

154. It has also been submitted by the learned counsel

that the present election was a continuation of the general

elections. In the general election which were held on 18.2.2008,

Mian Muhammad Nawaz Sharif had filed nomination papers for

NA 120 Lahore-III which were rejected vide order dated

3.12.2007 by the Returning Officer, in the presence of the

counsel of Mian Muhammad Nawaz Sharif after hearing both the

parties. Against that order of rejection of nomination papers

passed on 3.12.2007, appeal under section 14 of the Act being

competent was not filed by Mian Muhammad Nawaz Sharif and

that order dated 3.12.2007 had attained finality. The proposer

and seconder could not propose and second Mian Muhammad

Nawaz Sharif who could not also give consent for filing the

nomination papers before the Returning Officer for the seat in the

by-election to be held on 26.6.2008, and nothing was brought on

record to prove that this previous order was set aside by any

competent Court or forum or disqualification had disappeared in

the by-election.

(ix) UN-REFUTED ALLEGATIONS

155. It is clarified that Mian Muhammad Nawaz Sharif, the

candidate, having opted not to appear and having chosen not to

file any proceeding, petition/appeal/revision or review before the

competent court of law, under the prescribed provision of law, no

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other person can obtain declaration in respect of his

qualifications or disqualification by arguing that these provisions

were not applicable to his case. The person legally competent to

get such declaration is and was Mian Muhammad Nawaz Sharif

the candidate/convict/himself, therefore, in his absence, the

petitioners have got no legal right to obtain declaration for

purging his disqualification with regard to his status.

156. As there is no rebuttal from the candidate himself on

this factual aspect, therefore, we have to accept all these

disqualifications considering these uncontroverted by the

candidate himself and having no counter affidavit and arguments.

(8) INTERPRETATION OF SUBSECTION (5), (5-A) OF

SECTION 14 OF THE ACT.
157. It has been contended by the learned counsel for

proposer and seconder that the words used in subsection (5-A) of

section 14 of the Act, “suffer from any disqualification”. are

ejusdem generis to the categories noted to the preceding words

of “defaulter of loan, taxes, govt. dues or utility charges or has

had any loan written off”. But we are not in agreement with this

interpretation of the learned counsel for the proposer and

seconder. Before the provision is interpreted, it is necessary that

section 14 of the Act may be reproduced: -

“14. Scrutiny- (1) The candidates, their election agents, the proposers
and seconders and one other person authorized in this behalf by each
candidate and an elector who has filed an objection to the nomination
of a candidate, may attend the scrutiny of nomination papers, and the
Returning Officer shall give the reasonable opportunity for examining
all nomination papers delivered to him under Section 12:
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Provided that an elector who has filed an objection to the

nomination of candidate shall only attend the scrutiny of the nomination
paper of that candidate.

(2) The Returning Officer shall, in the presence of the persons attending
the scrutiny under sub-section (1), 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
objection, either by an elector or by any person referred to in sub-
section (1), conduct such summary enquiry as he may think fit and
may reject nomination paper 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;

(c) any provision of section 12 or section 13 has not

been complied with 3[ or submits any false or
incorrect declaration or statement in any material
particular]; or

(d) the signature of the proposer or the seconder is not

genuine:

Provided that: -

(i) the rejection of a nomination paper shall not

invalidate the nomination of a candidate by any other
valid nomination paper;

(1a) the Returning Officer may, for the purpose of scrutiny,

require any agency or authority to produce any
document or record;

(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 or his proposer or
secornder so as to bring them in conformity with the
corresponding entries in the electoral roll; and

a. the Returning Officer shall not enquire into the

correctness or validity of any entry in the electoral roll.

(3A) Notwithstanding anything contained in sub-section (3), where a

candidate deposits any amount of loan, tax or utility charges payable by
him before rejection of his nomination paper on the ground of default in
payment of such loan, taxes or utility charges, such nomination paper
shall not be rejected for default thereof.]

(4) The Returning Officer shall endorse on each nomination paper

his decision accepting or rejecting it and shall, in the case of rejection,
record brief reason therefore.

(5) A candidate, may prefer an appeal against the decision of the

Returning Officer rejecting or, as the case may be, accepting the
nomination paper of the candidate to the Tribunal constituted for the
constituency to which the nomination relates and consisting of not less
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than two nor more than three Judges of the High Court nominated by the
Commissioner, with the approval of the President; and such appeal shall
be summarily decided within such time as may be notified by the
Commission and any order passed thereon shall be final.

(5A) If, on the basis of any information or material brought to its

knowledge by any source, a Tribunal constituted under sub-section (5) is
of the opinion that a candidate whose nomination papers have been
accepted is a defaulter of loan, taxes government dues or utility charges
or has had any loan written off or suffers from any other disqualification
from being elected as a member of an Assembly, it may, on its own
motion, call upon such candidate to show cause why his nomination
papers may not be rejected, and if the Tribunal is satisfied that the
candidate is actually a defaulter as aforesaid or has had a loan written
off or suffers from any disqualification, it may reject the nomination
papers.

(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.

158. According to this section, it has to be noted that in

subsection (3) of section 14 of the Act, the Returning Officer has

been granted power to conduct such summary inquiry either of

his own motion or upon any objection raised either by an elector

or by any person referred to in subsection (1) and may pass order

of rejection. In that subsection, a few kinds of disqualifications

have also been enumerated. There is another provision of

subsection (3-A) of section 14 in which it has been provided that

the Returning Officer shall not reject the papers of the candidate

in case he deposits any amount of loan, tax or utility charges

payable by him before rejection of his nomination papers on the

ground of default in payment of such loan, taxes or utility charges.

Seen from this angle, the loan, tax or utility charges were noted in

subsection (3) of section 14, therefore, there was no need to

insert through amendment in 2002, this provision of subsection

(5-A) in section 14 of the Act. In fact, subsection (5-A) was

investing power to the Tribunal, who had to examine all kinds of

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objections of disqualifications of a candidate, upon the basis of

any information or material brought to its knowledge by “any

source”. The use of words, “or suffers from any disqualification”

was in actuality granting power to the Election Tribunal to

consider all the objections, of disqualifications brought by any

person, natural or legal (any source) who lays information, or

brings material before the Tribunal, it may be with regard to

default of dues or utility charges etc. or it may be any other

disqualifications of the candidate against whom such information

or material were not brought by his opposing candidate due to

any reason before the Returning Officer or the Election Tribunal.

The aim decipherable from this provision appears to further filter

the qualifications and disqualifications of a candidate through

“any source” other than the opposing candidate. By bringing this

provision, persons from general public have also been invited to

apprise of the tribunal, if any, disqualification which has been

suppressed or concealed or could not be brought by candidates

due to collusion or for any other reason.

159. It is important that in subsection (5-A) of section 14 of

the Act, at one place the words “or suffers from any other

disqualification from being elected as a member of assembly”

and at another place “or suffers from any disqualification” clearly

import that words “any other” has not been used as ‘ejusdem

generis’ to the default of loans. The word “other” cannot be

ignored from the provision which is occurring immediately after

the category of default of loan, taxes etc. if the plain words of

“any other disqualification” are kept in view then these are

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sufficient to dispel the impression that these words were

“ejusdem generis” to the preceding class of default.

160. We have also noted that the provision of subsection

(5-A) was inserted into section 14 of the Act when sub-section (3-

A) of the Act was also being brought into it. The legislature could

provide all that which is being argued in that subsection (3-A)

easily. But by providing a separate provision, wider net was

supplied in respect of disqualifications, persons bringing

information, and to empower and to give jurisdiction to the

Tribunal. Accordingly, the scope cannot be limited by applying rule

of “ejusdum generis”.

161. In fact, this provision is a second filter provided to the

Election Tribunal, in case a candidate maneuvers the acceptance

of his nomination papers through deceitful means or in

collaboration or with the conspiracy of the other candidate, by

making efforts of withdrawal or by manipulating the retirement of

other from the contest although he was patently disqualified to

contest election due to any of his disqualifications as conditioned

by law. This provision has broadened the scope and power of

election tribunal as earlier to this provision subsection (5) only

was there, which had provided the right of appeal to a candidate

before the Election Tribunal, against the acceptance or rejection

of nomination papers. But with the advent of this provision of

section (5-A) of section 14 during the process of Election, burden

of invocation of writ of Quo warranto has been relaxed upon a

common man/voter, source, etc. who was to wait and see till the
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finalization of election process. It is, therefore, that Election

Tribunal has been conferred power to act on the basis of any

information or material brought to its knowledge. The purpose of

insertion of this provision was to prohibit a disqualified person to

enter into the scared Hall of Parliament wherein a seat was

prescribed by the Constitution to a qualified person who is pious,

sagacious, righteous and non-profligate, honest and Ameen, not

of unsound mind, not an undischarged insolvent, not defaulter of

loans, taxes, government dues, utility charges, not guilty of

corrupt or illegal practices, not to those persons who were

removed or compulsorily retired from the Service of Pakistan etc.,

nor to those who were convicted by a court of competent

jurisdiction, not to persons or defamers who were propagating

any opinion or acting in any manner prejudicial to the ideology of

Pakistan, 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 not to those who

brings into ridicule the judiciary or the Armed Forces of Pakistan,.

as provided by Articles 62 and 63 of the Constitution, section 12,

subsections (3) (3-A) and (5-A) of Section 14 and section 99 of the

Act.

162. If the words “suffer from any other disqualification”

were used as ejusdem generis, then there was no need to insert

the word “any other” in the aforesaid subsection. The use of words

“any other” in its clear meanings are referring to other

disqualifications, which have been enumerated preceding to this

para, otherwise there was no fun to use the words “any other”.
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163. The interpretation of the word “any source” as put by

the learned counsel for the petitioner that it is confined only to

juridical person is also not restricted only to legal, juridical or

artificial person, it also covers in its encompass, the natural

person. See the word “source” as to how it has been defined in

Black’s Laws Dictionary (7th Edition): -

“Source- The originator or primary agent of an act,

circumstance, or result < she was the source of the
information> <the side business was the source of income>”

164. A nearly comprehensive meaning of “source” has

been found in Words and Phrases (Permanent Edition) by West

Publishing Company as under: -

“The word “source” conveys idea of origin, and is that from which
any act, movement, or effect proceeds; a person or thing that
originates, sets in motion, or is a primary agency in producing
any course of action or result; an originator; creator; origin”.

In the “New English Dictionary and Thesaurus” by Geddes &

Grosset (New Edition of 2000) it is given at page 557 Col II, which

is as under: -

“source n a spring forming the head of a stream; an origin or

cause; a person, book, etc, that provides information “vti (inf) to
find a supplier; to identify a source”.

165. From the above definitions, it is transparent and free

from doubt that the word “source” includes in it the legal, juridical

as well as natural person also. Moreover, this word “any source”

cannot be limited for loans, taxes, dues or utility charges.

166. In our opinion this provision has provided a remedy

which was lacking and deficit in the election process to electors,

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voters, or any other person who was in the knowledge of

disqualification of a candidate but was unable to object against

the candidate, who had manipulated the concealment/

suppression of those disqualifications from the returning officer,

so as to empower him to inform or place the material before the

election tribunal, so that a disqualified person might not contest

the election freely, with all his patent disqualifications which were

requiring no detailed inquiry, or proof, and the information or

material supplied was sufficient to restrain that candidate to

participate in the election. Because after the election process was

complete only a candidate was allowed to file election petition

with regard to election disputes under section 52 of the Act and

no other person was allowed to file an election petition with

regard to the qualifications or disqualifications after the end of

election. By providing this provision of subsection (5-A) in section

14 of the Act, in fact, the qualifications and disqualifications

disputes to a great extent were allowed to be settled uptill the

stage of the forum of Election Tribunal, in the election process.

(9) SUBSECTION (6) OF SECTION 14 OF THE ACT

167. The provision of subsection (6) of section 14 of the

Act has not provided any period for the disposal of the petition

filed under subsection (5-A) of section 14 of the Act. The word

used “an appeal” cannot be construed to include the word

‘petition’, therefore, this subsection (6) of section 14 of the Act

cannot be applied to the above mentioned petition. However, it

cannot be held that indefinite period has been provided for

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decision of such petitions. The principle and rule ‘reasonableness’

has to supply answer to it.

(10) JURISDICTION OF THE HIGH COURT

168. It has been contended that in election disputes, High

Court lacks power to interfere, due to provision of Article 225 of

the Constitution. Further has been submitted that power and

jurisdiction under Article 199 of the Constitution can be invoked

when whole election process is complete. Elaborating his

argument, learned counsel states that after a candidate is chosen

by the electorate and takes oath of the office, in that event,

election petition would be maintainable by the opposing

candidate and if it is not maintainable, in such a case, a writ of

quo warranto under Article 199 of the Constitution can be

instituted by any person.

169. While the learned counsel for respondents has

opposed the arguments by stating that power and jurisdiction

conferred by Article 199 of the Constitution upon the High Court is

unfettered. The bar contained under Article 225 of the

Constitution is applicable when the matter relates to election

disputes. A person who is not qualified can be debarred through

invocation of writ jurisdiction under Article 199 of the

Constitution, if the Returning Officer and the Election Tribunal

have failed to decide the matter in dispute or it has been decided

against the apparent admitted facts, documents and record, as is

the case of Mian Muhammad Nawaz Sharif, against whom there

were two major convictions and many other disqualifications in

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existence, which were not controverted even by the candidate

himself. In such a case, it was not necessary to wait and allow a

disqualified person to enter into the gates of Parliament, which is

a sacred place of peoples chosen representatives.

170. To appreciate the arguments of both the learned

counsel, copying of Article 225 of the Constitution is necessary

which is as under: -

225. Election Dispute. 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 [Majlis-e-Shoora (Parliament)].

171. Firstly, this Article has used the word “no election”

and secondly, except by an election petition” and the word “in

such manner as may be determined by Act of Majlis-e-Shoora

(Parliament). The Representation of the People Act, 1976 has

provided Chapter VII for election disputes. According to section 52

of the Act, an election petition can be filed by a candidate.

Subsection (1) of section 52 is as follows: -

52. Election Petition- (i) 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).

172. From reading of the above noted subsection (1) of

section 52 of the Act, it has transparently been provided that a

candidate can file an election petition and not any other person.

But after the insertion of subsection (5-A) in section 14 of the Act,

which has allowed “any source” (a person legal or natural) to

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communicate any information or place material before the

Election Tribunal with regard to the disqualification of a

candidate, a situation, may arise which has arisen in this case,

that the petition filed under subsection (5-A) of section 14 of the

Act has not been decided by the Election Tribunal, then what

should be the fate of that petition. If a petition is filed under the

above indicated subsection, and it is not decided for one reason

or the other, and the candidate against whom information has

been placed before the Election Tribunal, whether can be allowed

to contest the election, even if he has got clear disqualifications

of unrebutable and undeniable nature, having been proved

through admitted documentary proof, whose authenticity can not

be disputed even, by the candidate himself? The remedy provided

to convey information and to place the material before the

Election Tribunal through an application would become nugatory,

if the Election Tribunal does not decide it in either way. In these

circumstances, question arises as to whether such person

(“source”) may be ordered to remain mum and to wait till the

whole election process becomes complete and a disqualified

person enters the Hall of Parliament, mocking the purity of

election process and the actions of election authorities, who have

failed to perform their legal duty by allowing such disqualified

person to enter the Hall of Parliament. The answer is provided by

a legal maxim “Ubi Jus Ibi Remedium” (where there is right, there

is remedy). By granting right to a “source” to file petition before

an Election Tribunal with regard to the disqualification of a

candidate, the remedy has also to be provided to such “source”

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when his application is thrown away in a cold storage, without

even examining it. In these circumstances, when the election laws

are not providing any remedial steps, the High Court has got

inherent and constitutional powers to remedy the wrong being

done or having been done by the Election Tribunal.

173. Accordingly, the High Court has got power and

jurisdiction in these circumstances to invoke its power to do

justice.

174. Law is not a static object. It has to cope with the

modern ideas and concepts, and the disputes coming before the

court for resolution, as the society with its environmental set up is

continuously progressing. Laws as well as its remedies are also

changing with the passage of time. Before insertion of subsection

(5-A) of section 14 on 31.7.2002, appeal before the Election

Tribunal was competent by the candidate only but with the

introduction of subsection (5-A) of section 14 into the Act, scope

has been widened so to prohibit and restrain a disqualified person

to contest and participate in the election. This new concept was

introduced by section (5-A) of section 14 of the Act. Not only a

person (source) was allowed to lay information but the Election

Tribunal was itself conferred more powers and jurisdiction to

entertain such information and material, in respect of

disqualification of a candidate. When such power has been

granted to the Election Tribunal, then it was the duty of the

Election Tribunal to examine and decide the petition in either way.

But the petition could not be thrown away without any order being
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passed on it. In case of inaction of the Tribunal, the High Court

has got power under Article 199 of the Constitution to decide that

petition.

175. The latest trend developed by the Judge made law is

that qualifications and disqualifications of a candidate, being

matter of personal rights of the candidate, its decision, if it needs

no factual enquiry and the dispute can be decided on the basis of

admitted facts and authentic documentary proof, in that event,

the jurisdiction of the High Court would be there, to correct legal

errors or apparent defects having been crept into the order of the

learned Election Tribunal. In PLD 2008 S.C. 313 (Intesar Hussain

Bhatti v. Vice Chancellor, University of Punjab, Lahore and others)

it was held “when validity of election is not challenged and the

matter primarily relates to the competency and qualification or

otherwise of a person of a candidate in the election, the bar

contained in Article 255 would not be attracted and it would also

not apply when the Tribunal having jurisdiction has failed to

exercise the same”. It is important that the person aggrieved

cannot be left without any remedy at a later stage of the close of

Election, because a Tribunal having jurisdiction cannot do it

wrongly, but is bound to do it rightly”.

In PLD 2008 S.C.735 (Lt. Gen. (R) Salahuddin Tirmizi V.

Election Commission of Pakistan, many judgments were referred

with regard to scope of judicial review of the High Court under

Article 199 of the Constitution which were noted as under: -

(1994 SCMR 1299) Ghulam Mustafa Jatoi Vs Additional

District and Sessions Judge, Election Commission of
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Pakistan vs. Javed Hashmi (PLD 1989 Supreme Court 396)

and in Rao Sikandar Iqbal’s case (C.P.No.1 of 2008)

176. In para 29 of the above judgment of 2008, this Court

had observed as under: -

“………The High Court also in its constitution jurisdiction can

entertain the question of rejection or acceptance of
nomination papers, in the cases in which the disqualification
of a person to contest the election, is apparent and can be
decided without any factual inquiry………….”

“………..The power of Election Tribunal constituted under

Article 225 is confined to the extent of election disputes
which may also included qualification and disqualification of
a candidate whereas Article 199 of the Constitution is not as
such controlled by Article 225 of the Constitution in all
matter at all stages of election rather the High Court in
exercise of its constitutional jurisdiction may in suitable
cases exercise all powers to correct a legal error, defect or
disability and has much wider power to that of the power of
the Tribunal constituted under Article 225 of the Constitution
of Islamic Republic of Pakistan………..”

177. Accordingly, the impugned order passed by High

Court is just and proper and is not liable to be set aside.

Resultantly, we hold that proposer, seconder, Federation of

Pakistan and all the intervenors have got no right to defend the

qualifications and disqualifications of Mian Muhammad Nawaz

Sharif, who has failed to defend those qualities and disabilities of

election himself. These persons/petitioners cannot be considered

“aggrieved party” and to have a right to be impleaded in the writs

or to file civil petitions for leave to appeal in this Court.

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178. Consequently, the impugned judgment dated

23.6.2008 passed by learned Full Bench of Lahore High Court,

Lahore is upheld by refusing leave to appeal.

179. The above are the detailed reasons for the short order

announced on 25.2.2009.

J.

J.

J.

Islamabad,
25th February 2009
*Saleem*

APPROVED FOR REPORTING.