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PIR SABIR SHAH Versus SHAD MUHAMMAD KHAN, MEMBER PROVINCIAL ASSEMBLY,
N.W.F.P AND ANOTHER

November 16, 1994

— SUPREME COURT
— — — 1995 PLD 66

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JUDGMENT

SAJJAD ALI SHAH, C.J.---Both these direct appeals are filed under secti on 8-B of the Political
Parties Act, 1962, calling in questi on the majority decisi on of the Electi on Commissi on of
Pakistan (2 to 1), dismissing the references filed by appellant as Leader of the Parliamentary
Party in N-W.F.P. Assembly. In the references prayer was that the two respondents, named
above, may be declared disqualified from being the members of the Provincial Assembly on
the ground of defection.

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

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

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

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

6. During the course of hearing of the writ petitions before the High Court, the parties
arrived at a settlement, in consequence where of the decisi on of disqualificati on was
withdrawn so that the matter could be decided by the Electi on Commissi on of Pakistan as
contemplated under secti on 8-B of the Political Parties Act, 1962. It is stated that statement
was made by the counsel for the respondents that they would not participate in any Sessi on
of the Provincial Assembly till the matter of disqualificati on was finally decided by the Chief
Electi on Commissioner/Electi on Commissi on of Pakistan. The Advocate-General, N.-W.F.P.
also made a statement that the Governor would not call the Sessi on of the Assembly till
decisi on is rendered by the forum of Chief Electi on Commissioner/Electi on Commissi on of
Pakistan. Writ petitions were disposed of accordingly on the basis of such statements.

7. The Speaker of the Provincial Assembly of N: W.F.P. sent two references to the Chief Electi
on Commissioner at the behest of the appellant, who is the leader of the PML(N)
Parliamentary Party, as contemplated under Article 63(2) of the Constitution, for
disqualificati on of the respondents on the ground that they had defected and withdrawn
from the Pakistan Muslim League(N), and such decisi on was taken by the Parliamentary
Party of PML(N) in its meeting held on 22nd February, 1994. The learned Chief Electi on
Commissioner dismissed these references on the ground that they were incompetent for the
reas on that disqualificati on on the ground of defecti on was not mentioned in Article 63(1)
of the Constituti on but was mentioned under secti on 8-B of the Political Parties Act, 1962.
It may be mentioned here that under secti on 8-B of the Political Parties Act, 1962, forum
provided is the Electi on Commissi on of Pakistan and not the Chief Electi on Commissioner.
The appellant also filed two separate references for disqualificati on of the respondents
under secti on 8-B of the Political Parties Act, 1962, which have been dismissed by judgment
of the Electi on Commissi on of Pakistan by majority of 2 to 1 decision, which is impugned
before us in these two appeals under consideration.

8. It would be pertinent to menti on that the Presidential Proclamati on dated 25-2-1994

under Article 234 of the Constituti on was to remain in force for two months, and it was
challenged in Constituti on Petiti on No. 12 of 1994, filed directly in this Court, which was
heard by Full Bench of nine Judges and allowed by majority of 7 to 2 decision, declaring that
the Chief Minister and his cabinet shall cease to hold office during the operati on of the
Proclamati on but after it has expired, the offices of the Chief Minister and Cabinet shall
stand revived. on the other hand the minority view of the two Judges was that the Constituti
on petiti on was not competent on the ground that it was not maintainable in view of the
bar contained under Article 236(2) of the Constitution. Decisi on of the Supreme Court in the
case of Pir Sabir Shah v. The Federati on of Pakistan and others is published in PLD 1994 SC
738.

9. The Proclamati on under Article 234 was due to expire after two months on 25-4-1994,
and two days before on 23-4-1994 the said Proclamati on was varied under Article 236 of
the Constituti on by another Proclamation, under which Speaker of the Provincial Assembly
of N: W.F.P. ceased to hold the office, and the Governor was directed to nominate a member
of the Assembly to preside over the Session. In the result, the Governor nominated? one
other member of the Assembly to preside over the meeting of the Assembly for the said
Session. Against the variati on of the Proclamation, Constituti on Petiti on No. 28 of 1994
was filed directly in this Court on 2nd

May, 1994, which was admitted on 8th May, 1994 with order of issue of notices to the
Attorney-General for Pakistan and the Advocate-General, N.-W.F.P., as contemplated under
Order XXVII-A, C.P.C. and the hearing was adjourned to 11th June, 1994. Meanwhile,
references were disposed of by the Electi on Commissi on of Pakistan on 5th May, 1994 by a
split decisi on as mentioned above, holding that the respondents were not disqualified.
Against the decision
of the Electi on Commissi on of Pakistan, two Civil Appeals Nos. 381 and 382 of 1994 were
filed in this Court on 9th May, 1994, as contemplated under secti on 8-B of the Political
Parties Act, 1962, and order thereup on was passed on 15th May, 1994 for hearing alongwith
Constituti on Petiti on No.28 of 1994 on 11th June, 1994 at Islamabad.

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

????????????????? " ????????????? on the other hand it is submitted on behalf of the

respondents that presently total membership of the House is 80 and voting had taken place
on three occasions in the past. In the electi on of Deputy Speaker, Government secured 44
votes and in the electi on of Leader of the House and at the time of vote of no-confidence
42 votes were

cast in favour of the Government. 4 members of Jamait Islami did not participate."
It was ordered that this matter would be heard at Islamabad in the first week after
reopening of the Court after vacation. After vacati on when this case came up for hearing on
19th October, 1994, the cause list indicated CAs 381 and 382/94 first and were placed so for
hearing followed by Constituti on Petiti on No. 28 of 1994. Office cleared the positi on that
the cases were placed for hearing in that order under the orders of the Court as desired by
the parties.

1L on 19th October, 1994, when hearing commenced, it was brought to the notice of the
Court that the respondents had filed applicati on containing objections to the, effect that
the appeals contained questions relating to the vices of secti on 8-B of the Political Parties
Act, 1962 and involved interpretati on of various provisions of the Constitution; hence
Federati on of Pakistan and the Province of N.-W.F.P. should be impleaded as respondents
and notices be issued to the Attorney-General for Pakistan and the Advocate? General of N.-
W.F.P. as provided in Order XXVII-A; C.P.C. After necessary hearing notices were issued to
the Attorney-General for Pakistan and the Advocates-General of the Provinces to assist the
Court on the questi on whether secti on 8-B of the Political Parties Act, 1962 was ultra vices
the Constitution.

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

12-A. At this stage it would be pertinent to reproduce the issues framed in the references
before the Electi on Commission, which are as under:--

"(1) ?????? Whether secti on 8-B, of the Political Parties Act, 1962 is ultra vices the ????????
Constituti on and repugnant to the Injunctions of Islam? OPR

(2) ????????? Whether the references are incompetent, misconceived, mala fide and
????????????????? not maintainable? OPR

(3) ????????? What is the effect of the withdrawal of the decisi on by the ?????????????????
Parliamentary Party? OPR

(4) ????????? What is the effect of the withdrawal of the ruling of the Speaker? OPR

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

(6) ????????? Whether the respondents have become disqualified from being
????????????????? members of the Provincial Assembly of N.-W.F.P., if so, from what date?
OPP
(7)?????????? Whether the Electi on Commissi on of. Pakistan has jurisdicti on to determine
the vires of secti on 8-B of the Political Parties Act, 1962?? OPP

(8) Relief

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

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

15. In the case of Waris Meah v. State (PLD 1957 SC (Pak.) 157), the appellant was convicted
and sentenced as he pleaded guilty in the trial Court and his appeal was dismissed by the
High, Court. Normally against pleading guilty appeal was competent to ..the extent of questi
on of quantum of sentence only and not on merits but in this case the Supreme Court
interfered on the ground that in Foreign Exchange Regulati on Act, 1947 three forums with
powers to give different punishments were provided entailing punishments of unequal
nature which offended against Article 5 of the then Constituti on envisaging fundamental
rights to equality of treatment.

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

????????????????? 17. In the 1973 Constituti on apart from other jurisdictions, which are
mentioned specifically, Article 187 confers up on the Supreme Court jurisdicti on and power
.a to issue such directions, orders car decrees as may he necessary for doing complete
justice in any case or matter pending before it. In the instant case appeals filed under secti
on 8-B of the Political Parties Act, 1962, are pending before this Court and this Court can go
into the questi on whether they are competently filed or not and in that context also can go
into the questi on of vices of secti on 8-B to the extent of forum. This Court has to go into
details of hearing of arguments of both the sides in order to come to conclusi on whether
appeals are competently filed or not. Article 187 confers up on this Court ample authority
and jurisdicti on to do complete justice and give fording to that effect about competence of
forum.

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

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

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

????????????????? 21. In the case of Mst. Safyya and another v. Mohammed Rafique and 6
others (PL D 1993 SC 62) scope of Articles 187(1) and 185(3) of the Constituti on was
examined in the light of secti on 42 of the Specific Relief Act, Articles 70 and 72 of Qanun-e-
Shahadat and secti on 25 of the Contract Act. In that case three Courts below misread the
evidence, on the questi on whether the plaintiffs were daughters of vendor and failed to
give proper considerati on to material facts which had direct bearing on such question.
Validity of the sale-deed was in challenge on the ground that the vendor was not fit to enter
into contract as he was unconscious due to illness at the relevant time. It was held that the
Supreme Court although normally would not permit any appellant to urge a ground on
which leave had not been granted, but in a fit? case, if dictates of justice demanded, this
Court would permit appellant to urge any other ground particularly when same was in issue
before the Courts below and was directly linked with the ground on which leave had been
granted. It was further held that no party could be denied relief on technical ground if it was
otherwise entitled to such relief.

22. In support of the propositi on that this Court has more than ample powers to do
complete justice, as contemplated under Article 187 of the Constitution, reference can be
made to Order XXIII, Rule 6 of the Supreme Court. Rules, 1980, which also provides that
nothing in these. Rules shall be deemed to limit or otherwise affect the inherent powers of
the Court to make such orders as may be necessary for the ends of justice or to prevent the
abuse of the process of the Court. This rule is consistent with the spirit and amplitude of the
jurisdicti on and power as conferred up on it by the Constitution..

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

24. In the context of what is stated above it would be necessary to go into the history of the
Political Parties Act, 1962 with particular emphasis on inserti on and import of secti on 8-B
thereof. Pakistan came into being in 1947 as a result, of independence, and thereafter for
the first time Constituti on was promulgated in 1956, giving the country parliamentary form
of Government. on 5th September, 1958, Chaudhry Azizuddin and Mr. Yousuf Haro on
moved motions in the National Assembly to stop floor-crossing. No further acti on was
taken thereupon, and on 7th October, 1958 Martial Law was proclaimed in the country, and
in consequence the Constituti on of 1956 was abrogated and, inter alia, all the Political
Parties were abolished.

25. Field Martial. Ayub Khan, President of Pakistan, gave the country his own Constitution,
which came into force on 1st March, 1962, providing presidential form of Government.
Political Parties were revived on 5th July, 1962 and the Political Parties Act (III of 1962) was
promulgated on 15th July, 1962, providing for the formati on and regularizati on of the
Political Parties. At that time fundamental rights were not available, which were inserted in
the Constituti on by the Constitution's (First Amendment) Act, 1963 (I of 1964), which came
into force on 10-1-1964. The Political Parties Act was mentioned in the Fourth Schedule to
the Constitution, hence was saved from operati on of fundamental rights. Secti on 8 in the
said Act contemplated certain disqualifications for being a member of the National
Assembly or a Provincial Assembly. Secti on 8 in the original form before amendments is
reproduced as under :?

"(1)..A pers on who has been an office-bearer of the. Central or a Provincial Committee of a
Political Party dissolved under subsecti on (2) of secti on 6 or who has been convicted under
secti on 7 shall be disqualified from being elected as a member of the National Assembly or
a Provincial Assembly for a period of five years from the date of such dissoluti on or
conviction, as the case may be.

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

26. It is noteworthy that secti on 8(2) of the Political Parties Act, 1962 as? reproduced in the
original form mentions disqualificati on on the ground of "withdrawal" and not "defection".
No menti on is made in the said provisi on about forum, which was the Chief Electi on
Commissioner already provided under Article 104(2) of .the Constituti on of 1962, which is
reproduced as under:-?

"If any questi on arises whether a member of an Assembly has, after his election, become
disqualified from being a member of the I Assembly, the Speaker of the Assembly shall refer
the questi on to the Chief Electi on Commissioner and, if the `Chief Electi on Commissioner
is of the opini on that the member has become disqualified, the member shall cease to be a
member':'

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

28. on 25th March, 1969 Martial Law was proclaimed in the country and the Constituti on of
1962 was abrogated, but all the laws including Ordinances, Martial Law Regulations, Orders
and Rules, enforced immediately before abrogati on of the Constitution, were allowed to
continue in force. Thereafter, elections were held in the country on the basis of the political
parties and finally the Constituti on of Islamic Republic of Pakistan, 1973 was framed and
promulgated. At that time, the Political Parties Act, 1962 was in force and secti on 8(2)
thereof, as reproduced in the original form, held the field. Under Article 62 of this Constituti
on qualifications for membership of Parliament and under Article 63 disqualifications are
prescribed. Article 63(2) provides the forum of the Chief Electi on Commissioner to
determine the questi on whether a member has become disqualified or not after such questi
on is referred to him by the Speaker or the Chairman, as the case may be. Even at that time
there was anxiety to control floor-crossing, which was reflected in Article 96 of the
Constitution, which provided for vote of no-confidence against the Prime Minister. Proviso
to sub-Article (5) of Article 96 is reproduced as under:--

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

29. Article 226 of the Constituti on of 1973 provided that all elections l under the Constituti
on other than those of the Prime Minister and a Chief Minister shall be by secret ballot. Later
Article 96 was repealed by President Order No.14 of 1985, and the words "other than those
of the Prime Minister and a Chief Minister" in Article. 226 were omitted by President Order
No.24 of 1985. Subsecti on (2) of secti on 8 of the Political Parties Act was omitted by'
Ordinance NOXXI/1974 with effect from 8th May, 1975, which was later converted into Act
NO.XXI of 1975 on 18th February, 1975.

30. In 1977 again Martial Law was promulgated in the country, which was lifted in 1985.
Before lifting that general elections were held, which were not on the basis of the Political
Parties. Vide President Order No.14 of 1985, the Constituti on was revived by the Revival of
the Constituti on of 1973 Order of 1985 on 2nd March, 1985. The Constituti on was
substantially amended on 11-11-1985 to strike balance between the powers of the President
and the Prime Minister by Constituti on (Eighth Amendment) Act XVIII of 1985. Martial Law
was finally lifted by Proclamati on of Withdrawal of Martial Law on 30th December, 1985.
The Political Parties Act, 1962 was amended by Act XXII of 1985, inserting secti on 8-B
providing disqualificati on on the ground of defection, which reads as under:--

" ....(1) If a member of a House,

(a) ????????? having been elected as such as candidate or nominee of a political party, or

(b)?????????? having been elected as such otherwise than as a candidate or nominee of a

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

(2)?????????? If any questi on arises whether a member of a House has become disqualified
under subsecti on (1) from being a member, the questi on shall, on a reference by the
Leader of the Parliamentary Party concerned, be determined by the Electi on Commission.

An appeal against a decisi on of the Electi on Commissi on under subsecti on (2) shall lie to
the Supreme Court, within thirty days of the decision.
Explanation.-- 1n this section, "House" means a House of the Majlis-e?Shoora (Parliament)
and includes a Provincial Assembly."

In order to maintain sequence of the events in the background, it would be necessary to

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

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

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

34. Contenti on was raised before us that secti on 8-B of the Political Parties Act after the
lapse of last Ordinance No.XXX of 1993 amendment, made by way of substitution, would
not automatically be revived as is contemplated under Article 89 read with Article 264(c) of
the Constitution. In support of the propositi on reliance is placed an the case of? Ittefaq
Foundry v. Federati on of Pakistan (P"LD 1990 Lahore 121). W e are of the view. that it would
not be necessary to go into the questi on of effect of repeal in the light of the contenti on
raised above for the reas on that the main questi on which falls for considerati on before this
Court is to find out as to what was the intenti on of the Constitution-makers in providing
forum of the . Chief Electi on Commissioner as contemplated under Article 63(2) of the
Constitution, which is to be considered as the only forum for the reas on that no other
forum is provided for hearing of appeal against the decisi on of the Chief Electi on
Commissioner. Article 63(1)(p) envisages that disqualificati on under any law for the time
being in force can be added to the disqualifications mentioned [ under Article 63(1) of the
Constitution, but it is nowhere specifically said m G Article 63 that for the purpose of
determining the questi on of disqualification? forums can be added or different forums can
be provided against the forum of the Chief Electi on Commissioner, as contemplated under
Article 63 of the? Constitution.

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

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

37. Perusal of secti on 8-B of the Political Parties Act, 1962 shows very clearly that the words
"defects" and "withdraws" are not defined in the Constituti on or the relevant law. With the
result, confusi on has arisen not only with regard to the forums but also with regard to the
definiti on of the terms mentioned above. In the result, now reliance is to be placed by the
Courts on dictionary meanings for using these terms and considering defecti on as ground
for dissoluti on of the Assemblies on moral justification. In the tracheotomy of the powers
between the Legislature, Judiciary and Executive, it is undeniably the duty of the Legislature
to make laws which are comprehensive and perfect in all respects without leaving room for
ambiguity, and it is the duty of the Judiciary to interpret the Constituti on and the laws as
they are, without transgressing the limits set on its powers of interpretati on by filling in the
blanks left by the Legislature. In the case of the State v. Ziaur-Rehman and others (PLD 1973
SC 49) it was held that "the Supreme Court has never claimed to be above the Constituti on
nor to have the right to strike down any provisi on of the Constitution. It has accepted the
positi on that it is a creature of the Constitution; and that it will even confine itself within the
limits set by the Constituti on which it has taken oath to protect and preserve- but it does
claim and has always claimed that it has the right to interpret the Constituti on and to say as
to what a particular provisi on of the Constituti on means or does not mean, even if that
particular provisi on is a provisi on seeking to oust the jurisdicti on of this Court". Likewise, in
the case of Fauji Foundati on and another v. Shamimur Rehman (PLD 1983 SC 457) it is held
by this Court that in the Constitutional system of Pakistan though there is tracheotomy of
powers between Executive, Legislature and Judiciary, yet each organ or branch of it operates
in defined field of course with inherent limitations that one organ or sub-organ may not
encroach up on legitimate field of others.

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

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

(Sd)

Sajjad Ali Shah, CJ

(Sd.)
Zia Mahmood Mirza, J

(Sd.)

Fazal Karim, J

(Sd.)
Muhammad Munir Khan, J

(Sd.)

Mir Hazar Khan Khoso, J

(Sd.)
Irshad Hasan Khan, J,

(Sd.)

Mukhtar Ahmed Junejo, J

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

2. These are two appeals under secti on 8-B(3), Political Parties Act, Act III of 1962, from the
judgment of the Electi on Commissi on whereby the two references made by the appellant
to the Commissi on for the enforcement of the disqualificati on as set out in subsecti on (1)
of the said secti on against the respondents on the ground of defection/withdrawal were
dismissed.

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

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

5. on 3-2-1994 some members of the Oppositi on party gave notice to the Speaker of the
Assembly of their intenti on to move a resoluti on for a vote of no-confidence against the
appellant. The Speaker summoned a sessi on of the Assembly for 16-2-1994 in response to
the said notice. The Assembly duly met on the said date and the Speaker fixed 23-2-1994 for
the purpose of putting the resoluti on to the vote of the Assembly.

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

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

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

10. on behalf of the respondents objections were raised to the maintainability of the appeals
as well as to the competence of the Electi on Commissi on to hear the references filed by the
appellant. It was contended that secti on 8-B, Political Parties Act (hereinafter referred to as
the Act) was ultra wires of the Constituti on as it came in conflict with numerous provisions
thereof. The Deputy Attorney-General as well as the Advocates-General, except the.
Advocate-General of Balochistan, supported the said objections and stated that secti on 8-B,
ibid, was not a valid law. The Advocate-General of Balochistan, however; expressed a
contrary opinion.

11. Secti on 8-B was introduced in the Political Parties Act, by Act XXI1 of 1985. It came into
force on 25-12-1985. It reads as follows
"8-B, disqualificati on on ground of defection, etc.--If a member of a House?

(a) having been elected as such as a candidate or nominee of a political party, or

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

(2) if any questi on arises whether member oh a louse has become disqualified under sub-
secti on from being a member, the questi on shall, on a reference by the Leader of, the
Parliamentary party concerned, be determined by? the Electi on Commission.

An appeal against a decisi on of the Electi on Commissi on under subsecti on shall lie to the
Supreme, Court. within thirty days of the decision? ~

Explanation? In this secti on `House means a House, ref the Majlis-cloora (Parliament) and
include?? a Provincial Assembly:

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

12. How ever, during the course of the arguments same of cur brothers expressed the view
that the expiry of the amending Ordinances referred to above aid not have the effect of
reviving the original text of secti on 8-1 of? the Act. In this context reference teas made to
the language of Articles 89(2) and `(a) of the Constituti on and it was observed that under
Article 8() an Ordinance which had expired was to be treated as if it had been repealed and
by operati on of Article 64 of the repeal of are Ordinance could not have the effect of
reviving anything riot ire force or existing at the tune when the repeal took effect;
consequently, the original text of are Ordinance which had been amended would not stand
evidence can the expire of the amending Ordinance. In i rah' opini on this argument is not
tenable. The power of legislati on enjoyed by the President under Article 5 is of a temporary
nature anal the Constituti on itself fixes the maximum period during which an Ordinance
carp remain alive. Article 26 is intended to be an aid to interpretation; the ambit of clause (a)
of this Article which essentially relates to past and closed transactions cannot be enlarged so
as to have the effect of extending the life of a temporary piece of legislati on beyond the
period specifically fixed by the Constitution. The Constituti on vests the legislative power of
the Federati on exclusively in the Parliament; to make the President a co-sharer in that
power in leis own right, except for a short period, is clearly not permissible. It is to be
noticed, as its principal clause indicates, Article 264 cannot be construed in a manner that
would defeat or render ineffective the apportionment'- of? State power, as envisaged by the
Constitution, among the various organs thereof. It is therefore, erroneous in my opini on to
contend that even though the maximum -life of an Ordinance is fixed by the Constitution,
yet, by operati on of clause (a) of article 264 which is intended to protect past and closed
transactions, an expired Ordinance is to be taken to have left a permanent scar on the
statute book.

13. , During the course of the hearing of 'these appeals a doubt was cast on the competency
of the Electi on Commissi on to examine the vires of secti on 8-B of the Act by reas on of its
conflict with different provisions of the Constitution. It was argued that the Electi on
Commissi on could not pronounce up on the validity of the very Act which had created the
jurisdicti on in it to entertain and decide the references made under subsecti on (2) thereof.
In my opini on it is -unnecessary to go into this part of the controversy arising between the
parties for we-too were invited to pronounce up on the vires of the said section. I may add
that even though while hearing these appeals this Court is exercising a jurisdicti on created
in it by secti on 8-B(3) of the Act, yet, in my' opinion, this fact does not preclude it from
examining its validity. The reas on is not far to seek. This Court is the highest judicial tribunal
in the country and against its decisi on there is no remedy available to an aggrieved party. If
any limitati on is imposed up on it with regard to the legal questions that may be raised
before it when it is hearing an appeal, a party may be left without a forum where it can
agitate vital questions affecting the merits of its case. Apart from that the Judges of the
Court are under an oath to preserve, protect and defend the Constitution. Therefore, they
cannot decline to strike down a law l which is violative of the Constitution.

14. Secti on 8-B, as it stands, not only provides a penalty against defecti on or withdrawal
but also creates the forum where the penalty may be enforced. It was contended by Mr.
Sharifuddin? Pirzada that the prohibiti on against defecti on or withdrawal as set out in this
secti on was an unjustifiable clog on, the right of the member of an Assembly to follow the
dictates of his conscience and was for that reas on un-Islamic; further, it violated many
provisions of the Constitution, such as Article 2A, which has made the Objectives Resoluti on
a substantive part of the Constituti on Article 4 which inter alia declares that to enjoy the
protecti on of law is the inalienable right of citizens; Article 14, which provides protecti on
against violati on of the dignity of man; Article -18, which guarantees freedom of associati
on and freedom of choice in political acti on and thought; Article 66 which assures the
members of the Assembly freedom of speech and vote in the Assembly; and, Article 63
which. sets out the disqualifications which the members of an Assembly must not incur and
the manner as well as the forum for their enforcement.
15. on the questi on of the competency of the Electi on Commissi on to hear the references
under secti on 8-B(2) it was contended on behalf of the respondents that the Constituti on
had itself in Article 63(2) designated the Chief Electi on Commissioner as the authority to
decide the controversy relating to the disqualificati on of a member of an Assembly and that
the jurisdicti on conferred up on him in this regard could not be transferred to any other
body or pers on through sub-Constitutional legislati on consequently, sub?secti on (2) of
secti on 8-B which empowered the Electi on Commissi on to pronounce up on the, said
controversy and subsecti on (3) there of which provided an appeal to the Supreme Court
from the decisi on of the Electi on Commission, suffered from infirmity on account of conflict
with Article 63(2), ibid. In the circumstances, neither the Electi on Commissi on was
competent to entertain the references made by the appellant nor were his appeals
maintainable before this Court.

16. It seems difficult to subscribe to the contenti on raised on behalf of the respondents.
Secti on 8-B(2) has already been reproduced above. Article 63(2) is in the following terms:

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

By virtue of Article 127 of the Constituti on this-provisi on is also applicable to the members
of a Provincial Assembly.

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

17. The questi on whether the Parliament was competent to add to the list of
disqualifications by sub-Constitutional legislati on may now be examined. Prior to the Eighth
Amendment, Article 63(1) read as follows:

"A pers on shall be disqualified from being elected or chosen as, and from being, a member
of Parliament, if -

(a)?????????? he is of unsound mind and has, been so declared by a competent Court: or

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

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

(d) ????????? he holds any office of profit in the service of Pakistan other than an? office
declared by law not to disqualify its holder; or

(e) ????????? he is so disqualified by Act of Parliament."

18. The Eighth Amendment to the Constituti on replaced clause(1) of Article 63 and
provided a long list of disqualifications. After the amendment the said clause reads as
follows:

"A pers on shall be disqualified from being elected or chosen as, and from being, a member
of the Majlis-e-Shoora (Parliament), if--

he is of unsound mind and has been so declared by a competent Court; or

he is an undischarged insolvent; or

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

a????????????????? foreign State; or,

(d)?????????? he holds an office of profit in the service of Pakistan other than an? office
declared by law not to disqualify its holder; or

(e)?????????? he is in the service of any statutory body or anybody which is owned or

controlled by the Government or in which the Government has a controlling sharp or
interest; or

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

(g)?????????? he is propagating any opinion, or acting in any manner, prejudicial to the

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

(i)???????????? he has been dismissed from the service of Pakistan on the ground of
misconduct, unless a period of five years has elapsed since his dismissal; or

(j)???????????? he has been removed or compulsorily retired from the service of Pakistan on
the ground of misconduct unless a period of three years has elapsed sine his removal or
compulsory retirement; or

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

(1)?????????? he is found guilty of corrupt or illegal practice under any law for the .time
being in force, unless a period of five years has elapsed from the date on which that order
takes effect; or

(m)????????? he has been convicted under secti on 7 of the Political Parties Act, 1962 (111 of
1962), unless a period of five years has elapsed from the date of such conviction; or
Provided that the disqualificati on under this paragraph shall not apply to a person:?

(i)???????????? where the share or interest in the contract devolves on him by inheritance or
successi on or as a legatee, executor or administrator, until the expirati on of six months
after it has so devolved on him;

(ii)???????????????????????????? where the contract has been entered into by or on behalf of

a public company as defined in the Companies Ordinance, 1984 (XLVII of ?????????????????
1984), of which he is a shareholder but is not a director holding an office of profit under the
company; or

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

Explanation.-- In this Article `goods' does not include agricultural produce or commodity
grown or produced by him or such goods as he is, under any directive of Government or any
law for the time being in force, under a duty or obligati on to supply.

(o)???????????????????????????? he holds any office of profit in the service of Pakistan other

than the following offices, namely:-?
(i)?????????????????????????????? an office which is not whole time office remunerated either
by salary or by fee;

he, whether by himself or by any pers on or body of persons in trust for him or for his
benefit or on his account or as a member of a Hindu Undivided Family, has any share or
interest in a contract, not being a contract between a Cooperative Society and Government,
for the, supply of goods to, or for the executi on of any contract or for the performance of
any service undertaken by Government:

(ii)???????????????????????????? the office of Lumbardar, whether called by this or any other

title;

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

(iv)????????? any office the holder whereof, by virtue of such office, is to be called up for
military training or military service under any law providing for the constituti on or raising of
a Force; or

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

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

Similarly, the, relevant extract from the electi on manifesto of the Pakistan Muslim League
(Nawaz Group) issued in 1993 is in the following terms

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

There can be no doubt that the Parliament can make laws under Item 41, ibid, which would
lend credibility to the electi on and save the constituents from being hoodwinked by
unscrupulous candidates. There is a very close nexus between defection/withdrawal and the
elections to the Assemblies and the Senate.

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

?20. The contention. that the law discouraging defecti on or withdrawal is un-Islamic has
amused me. Islam places great emphasis on the Muslims keeping their word. My learned
brothers, Ajmal Mian and Saeeduzzaman Siddiqui, JJ., have quoted several Ayats from the
Holy Qur'an and some Ahadiths on the subject I need not burden my note by reproducing
the same As already pointed out, a member who has been elected to the Assembly by
holding out to his. constituent that he belongs to a political party and subscribes to a
particular manifesto can hardly be said to be acting in accordance with the true Islamic
traditi on if after winning the electi on he switches his support to another political party with
a different manifesto solely with the object of making some petty mundane gain.
21. It was argued on behalf of the respondents that under Article 17(2) of the Constituti on
every citizen had the right to be a member of any political party and as secti on 8-B of the
Act placed a check on this right it was ultra vires of the said Article. This contenti on is again
misconceived. The said Article cannot be so construed as to permit a member to commit
fraud up on his constituents. Secti on 8-B does not stand in the way of a member from
subscribing to any political party or view. It only prevents him from changing his political
colour which would leave the majority of the voters in his constituency without proper
representati on in the Assembly; it does not bar him from seeking fresh electi on on the
basis of his altered political views or loyalty.

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

23. I am, therefore, of the view that secti on 8-B of the Act is a valid piece I of legislati on
and the appeals preferred by the appellant before this Court are competent.

(Sd.)
SAAD SAOOD JAN, J.

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

I am a party to the above minority view. I wish to record my own reasons in support there of
as the above appeals involve very important questions ' of law having far reaching
consequences.

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

3. It appears .that on 23-2-1994, early in the morning, the two respondents had filed two
writ petitions, namely, Writ Petitions Nos.230 and 231 of 1994 inter alia against the Speaker
alleging therein that they were apprehensive of the fact that the Speaker would not. allow
them .to discharge their functions as members of the Assembly. An applicati on for an
interlocutory relief was also filed for restraining the Speaker from interfering with the
respondents' above right to act as the members of the Assembly. The above interlocutory
applicati on was granted by the majority of the Full Bench by an order, dated 28-2-1994 in
the following terms:--

"By majority of judgment C.M. is accepted and stay i5 granted. The alleged order of
disqualificati on of the writ petitioner by the Parliamentary Party of Pakistan Muslim League
Nawaz Group under its Leadership of Syed Sabir Shah, Chief Minister (respondent No.1) to
its meeting held on 22nd February, 1994 followed by the Ruling of the Speaker in the
Provincial Assembly on 23rd of February, 1994 are hereby suspended. The membership of
the writ petitioner shall remain intact till the decisi on of the main writ petition. Writ petiti on
is to be fixed. for hearing at the earliest."
The above order was set aside. by this Court up on Civil Petitions Nos.9 'and 9 t of 1994 filed
by the Speaker of the Assembly and Civil Petitions Nos.98 and 99 of 1994 filed by the
appellant by converting the same into appeals vice judgment, dated 10-3-1994 and
remanding the case to the High Court for disposal of the main petitions.

It appears that after the above remand order of this Court, the parties settled the matter.
Messrs M. Sardar Khan and Mian Saqib Nisar, Advocates for respondents Nos.l to 6 and
respondents Nos.3 to 5 and 7 to 14 respectively made following statement:--

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

Whereas Mr. Iftikhar Hussain Gillani, learned counsel for the respondent No.2 (i.e. the
Speaker of the Assembly) made the following statement:--

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

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

' "Statement filed on behalf of the petitioners in the aforesaid writ petitions in the High
Court:

We have heard the statement of the counsel for the respondents. We accept the offer made
in their statements. Our writ petitions may be disposed of in terms thereof. We undertake
that till the decisi on of the matters/references to the Chief Electi on Commissioner/Election
Commissi on we will not participate in any sessi on of the Provincial Assembly."
Statement filed on behalf of the Governor, N:
W.F.P.:?????????????????????????????????????????????????? I -

"I have obtained instructions from the Governor, N: W.F.P, and I give an undertaking on his
behalf that there will not be convened a sessi on of the Provincial Assembly till the decisi on
of the matters/references made by the respondents or to be immediately made by the Electi
on Commission/Chief Electi on Commissioner."

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

"The Advocate-General representing the Governor of the Province has made a statement
that till the decisi on of the matters/references by the Electi on Commission/Chief Electi on
Commissioner about the disqualificati on of the writ petitioners no sessi on of the Provincial
Assembly shall be convened.

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

5. The appellant filed the aforesaid two references under secti on 8-B of the Act before the
Commissi on on 29-3-1994 separately against the above two respondents. He also got filed
a reference under clause (2) of Article 63 of the Constituti on of the Islamic Republic of
Pakistan, 1973, hereinafter referred to as the Constitution, on 30-3-1994 before the Chief
Electi on Commissioner against the respondents through the Speaker of the Assembly.

6. It will not be out of context to menti on that on 25-2-1994 the President of Pakistan
issued a Proclamation, whereby the Provincial Assembly was suspended, the appellant and
his Cabinet were dismissed and the Governor was directed to assume the functions of the
Provincial Government on behalf of the President. The above acti on was impugned by the
appellant through Constituti on Petiti on No.12 of 1994 in this Court, which was disposed of
by a short order, dated 21-4-1994 in the following terms:-- '

"The Court by majority of (7 to 2) is of the view that the Proclamati on issued by the
President to the extent it purports to declare that the Chief Minister and his cabinet shall
cease to hold office beyond the period of currency of the proclamation, is in excess of the
power conferred on the President under? article 234 of the Constituti on of the Islamic
Republic of Pakistan. It is? accordingly held that on the revival Lt the Provincial Assembly on
the 'lapse of the Proclamati on the Chief Minister and his cabinet will also stand revived. It is
however, clarified that it will be open to the (Governor to refix a date and time. in
accordance with Article 130(5) of the Constituti on requiring the Chief Minister to obtain a
vote of confidence from the Assembly. The petiti on is allowed to the above extent with no
order as to costs."

????????????????? 7. ' it appear that the Governor c' erred the meeting, of the Assembly for
24-4-1994 at 9-00 a.m. and the appellant was directed by the Governor through his letter,
dated 23-4-1994 addressed to him to obtain vote of confidence_ The appellant contested
the legality of the Governor's above acti on and pointed cut that the same was in breach of
the above undertakings given ' by the Governor in the High Court and violati on of the
above order of this Court. Consequently, the appellant and his supporters did not attend the
above sessi on of the Assembly. After that, Mr. Aftab Ahmed Khan Sherpao was inducted as
the Chief Minister. He. formed his Ministry which was? impugned by the appellant through
Constituti on Petiti on No.28 of 1994, dated 2-5-1994 filed in this Court under Article 184(3)
of the Constitution, which? as admitted on 8-5-1994 for regular hearing and the same was
fixed for? 1-6-1994 for regular hearing at Islamabad.

8.?? The above references were resisted inter alia by the respondents inasmuch as detailed
written statements were fled, in which inter alia it was pleaded that secti on 8-B of the Act
was ultra vires the Constitution. It was also averred that the references were not competent.

9. on the basis of pleadings of the parties in the above references under secti on 8-B of the
Act, the following eight issues were framed:--

(1)?????????? Whether secti on 8-B of the Political Parties Act, 1962 is ultra vires the
Constituti on and repugnant to the Injunctions of Islam? O.P.R.

(2)?????????? Whether the references are incompetent, misconceived, mala fide and not
maintainable? O.P.R.

(3)???????????????????????????? What is the effect of the withdrawal of the decisi on by the

Parliamentary Party? O.P.R.

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

(5)???????????????????????????? Whether the respondents have defected from Pakistan

Muslim League
????????????????? (Nawaz Sharif Group), if so, what is its effect? O.P.P.

(6)?????????? Whether the respondents' have become disqualified from being members of
the Provincial Assembly of N.-W.F.P., if so, from what date? O.P.P.

(7)?????????? Whether the Electi on Commissi on of Pakistan has jurisdicti on to determine

the vires of secti on 8-B of the Political Parties Act, 1962? O.P.P.
(8)?????????? ? Relief."

Whereas in the reference under Article 63(2) of the Constituti on filed against the
respondents, the following two issues were framed:--

(1)???????????????????????????? Whether the reference, dated 30th March, 1994 before Chief
Electi on Commissioner is competent?

(2)???????????????????????????? Whether in view of the order passed by the Peshawar High

Court on 21st March, 1994, this reference still subsists?"

10. The evidence was recorded in the above references. The Electi on Commission, which
consisted of the Chief Electi on Commissioner and two learned Judges of the High Courts as
Members, after hearing the learned counsel for the parties, disposed of the above two
references through the aforesaid majority judgment, dated 5-5-1994. The two learned
Members of the Commissi on in their majority opini on while discussing above issues Nos.5
and 6 held that the proceedings under secti on 8-B of the Act were of quasi-criminal nature
and, therefore, every elected representative would be deemed to have not been defected
unless proved to the hilt that he had in fact defected. After appraisal of the evidence
brought on record, they held that the appellant failed to prove the factum that the above
two respondents had defected and, therefore, dismissed the above references. While dealing
with Issue No.2, it was held by them that no material on the file was brought to show that
the two references were incompetent or that they were misconceived or not maintainable. It
was also held that the plea of mala fide had not been proved.
It may be observed that while dealing with Issues Nos.l and 7, it was held by them that the
Electi on Commissi on would have no jurisdicti on to determine the vires of secti on 8-B of
the Act.

11.???????????????????????????? The learned Chief Electi on Commissioner, Mr. Justice (Retd.)

Naimuddin, in his dissenting note while dealing with Issues Nos.l and 7, held that the issues
of vires could be finally decided by the superior Courts and not by the Electi on Commission.
Under Issue No.2, he held that the references were competent and maintainable and there
was no mala fide nor they were misconceived. Whereas under Issue No.3, he held that
withdrawal of the decisi on by the Parliamentary party for disqualifying the respondents had
no effect on the two references . He also held under Issue No.4 that withdrawal of the ruling
of the Speaker of N.-W.F.P. was also of no effect on the above references. As regards imbues
Nos.5 and 6, he held that the standard of pro of would not be in accordance with the strict
pro of or pro of beyond reasonable doubt but the rule applicable would be as laid down in
civil matters in accordingly, with the provisions of Article 2(4) of the Qunan-e- Shahadat,
1984. He further held that the appellant was able to prove the allegati on of defecti on
against the respondents on the basis of above standard of proof. tie was further of fife view
that even otherwise the rule of strict pro of vas satisfied in the present cases on the basis of
the material available on record. Thereupon, the appellant filed the above two appeals.
12. The above reference under Article 63(2) of the, Constituti on was' disposed of by the
Chief Electi on Commissioner, alone- by judgment, dated 5-5-1994, in which he accepted
the respondents' contenti on that the same was not competent. The operative porti on of
the judgment reads as follows.--

"It may be noted that such a clause is not provided in Article 63 of the constitution.
Therefore, after he has been elected, he can be disqualified only on any of the grounds
mentioned to Article 63(1) of the Constituti on or secti on 99(1-A) of the Representati on of
the People Act, 1976 except in cases falling under secti on 8-B of the Representati on of the
People Act, 1962.".

No petiti on for leave to appeal was filed by any of the parties against the above judgment
and, therefore, the above judgment has acquired finality.

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

14. The above appeals came up for hearing on 19-10-1994 when the respondents filed two
miscellaneous applications under Rule 6, Order XXXIII read with Rule 1, Order XXIX of the
Supreme Court Rules read with Order XXVII-A, C.P.C. for impleading the Federati on of
Pakistan and the Province of N: W.F.P. in the above two appeals and for issuance of notices
to the Attorney-General and the Advocate-General, N.-W.F.P. under Order XXXVII-A, C.P.C.
Up on the above applications, notices were issued on the above date 23-10-1994 to the
learned Attorney-General and the learned Advocates-General of the four Provinces to assist
the Court on the questi on of vires of secti on 8-B of the Act.

15. Mr. Iftikhar Gilani, learned A.S.C. completed the facts and formulated his submissi on by
the tea break on 23-10-1994 when Mr. Syed Sharifuddin Pirzada requested the Court to hear
the questi on of vires of secti on 8-B of the Act. He was allowed to make his submissions on
the above point.

16. Mr. Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing for the
respondents, has urged as under:--

(i)?????????????????????????????? That the Commissi on was competent to go into the questi

on of vires of secti on 8-B of the Act;

(ii)?????????? in the alternative, this Court being the apex Court, has wider powers while
hearing an appeal and, therefore, it is competent to examine the above question;

(iii)????????? that secti on 8-B of the Act is in fact ultra vires the provisions of the Constituti
on and, therefore, references filed by the appellant under the aforesaid provisi on were liable
to be dismissed; and

?(iv)??????? that even otherwise in view of clause (2) of - Article 63 of the Constituti on which
provides a reference to the Chief Electi on Commissioner on the questi on of disqualification,
the above two references under secti on 8-B(2) of the Act were misconceived and
incompetent.

Mr. Faqir Muhammad Khokhar, the learned Deputy Attorney?General; who appeared on
behalf of the learned Attorney-General, besides adopting arguments of Mr. Sharifuddin
Pirzada urged that secti on 8-B of the Act is violative of Article 25 of the Constituti on being
discriminatory.

Mr. Abdus Sattar Najam, learned Advocate-General, Punjab, who appeared for the Province
of Punjab, made submissions on his own behalf and on behalf of the learned Advocate-
General for the Provinces of Sindh and N.-W.F.P. besides adopting the arguments of Mr.
Syed Sharifuddin Pirzada, and contended as under:--

(i)???????????? That since sub-clause (p) of clause (1) of Article 63 of the Constituti on relates
to pre-electi on period, the Legislature was not competent to enact secti on 8-B of the Act;

(ii)?????????? that under Article 17(2) of the Constitution, no law containing restrictions on
the right of a member of the Political Party to act as a member of an Assembly or to vote as
such can be enacted as reasonable restrictions referred to therein, can be imposed only in
respect of two items i.e. in the interest of sovereignty or integrity of Pakistan and not for
defecti on and, hence, secti on 8-B of the Act is ultra vires.
Mr. Yakoob K. Eusufzai, learned Advocate-General Balochistan, had adopted a contrary line
of arguments to that of other three learned Advocates?General on the questi on of vires of
secti on 8-B of the Act. His submissions were:--

(i)???????????? That. the commissi on had no jurisdicti on to go into the vires of secti on 8-B
of the Act;

(ii)?????????? that this Court being the apex Court has the jurisdicti on to examine the questi
on of vires of secti on 8-B of the Act; and

(iii)????????? that on no basis, either on account of the provisions of the Constituti on or

because of the Islamic concept, secti on 8-B can be declared as ultra vires.

Mr. Khalid Anwar, learned counsel for the appellant, leas contended as follows:-

(i)???????????? That the Commissi on had no jurisdicti on to go into the questi on

of????????????????? vires of secti on 8-B of the Act;

(ii)?????????? that this Court is seized of the matter under subsecti on (3) of secti on R-B of
the Act. Under the above provisions, questi on of wires cannot be examined.

However, his further submissi on was that if this Court was to invoke Article 184(3) of the
Constitution, the questi on of vires of secti on 8-B of the Act with reference to the
enforcement of Fundamental Rights and not with reference to Article 63(2) or Article 66 of
the Constituti on could be examined;

(iii)????????? that Article 187(1) of the Constituti on is to be read with the restrictions
contained in clause (2) of Article 175 of the Constituti on and, therefore, this Court cannot
invoke the provisi on of clause (1) of Article 187 if it has not been conferred jurisdicti on
under any other provisi on of the Constituti on or law; and

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

Mr. Iftikhar Gilani, learned A.S.C. who has also appeared for the appellant on the questi on of
vires of secti on 8-B of the Act, has urged as follows:--

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

(ii)?????????? that the provisions contained in Article 63 of the Constituti on are not of
organic nature but they are of specie of sub-Constitutional provisions and as the same
contain detailed law on the items covered therein, the other . detailed law on the subject
enacted by the Parliament cannot be struck down but they are to be read in conjunction.

17.???????????????????????????? I may now revert to the question, whether the Commissi on

was competent to go into the questi on of vires of secti on 8-B of the Act. Mr. Syed
Sharifuddin Pirzada, in support of his above submissi on that the Commissi on was
competent to examine the above question, has referred to the case of Muhammad Hashim
Khan and others v. Province of Balochistan and others PLD 1976 Quetta 59, the case of
Muhammad Asif v. Secretary to Government of the Punjab, C and W Department, Lahore
and 4 others 1990 PLC (C.S.) 257, the case of Iqan Ahmed Khwram v. Government of Pakistan
and others PLD 1980 SC 153, the case of IA. Sharwani and others v. Government of Pakistan
through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and the case of
Hamayun Saifullah Khan v. Federati on of Pakistan through Secretary, Ministry of Justice,
Parliamentary Affairs, Islamabad and 2 others PLD 1990 SC 599.

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

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

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

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

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

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

on the terms and conditions of the service even if it involves the questi on of violati on of
the Fundamental Rights."
In the above fifth case, an appeal with the leave of this Court was filed against the judgment
passed in a Constituti on petition, allowing the same and directing the Electi on Commissi
on of Pakistan not to proceed with the reference under secti on 8-B of the Political Parties
Act, then pending before it inter alia against the petitioner. Leave was granted to consider
the following questions:--

"Whether the High Court could issue the writ of prohibiti on to the Electi on Commissi on
when specially a provisi on of appeal is provided to the Supreme Court?

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

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

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

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

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

Whereas Hamoodur Rehman, J. recorded the following observation:

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

In the above second case, a Full Bench of the erstwhile High Court of West Pakistan, headed
by Manzur Oadir, CJ., while. dealing with a second appeal arising out of the provisions of the
late West Pakistan Urban Rent Restricti on Ordinance, 1959, touched up on the questi on of
jurisdicti on of Special Tribunal. It may be advantageous to reproduce the following
observati on from the opini on of Manzur Oadir, CJ.:--

"15. An objecti on to the jurisdicti on of a Tribunal may take one of the following general
forms--

(i)???????????? that the law under which that Tribunal is created is defective or invalid;

(ii)?????????? that .the Tribunal is not constituted or appointed validly under the law;

(iii)????????? that a party or the parties is or are not amenable to the jurisdicti on of the
Tribunal; and

(iv)????????? that the subject-matter is outside the field in which the particular Court is
competent to act.

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

In the third case, an award made by the Industrial Relations Commissi on up on a reference
made by the Federal Government under the provisions of secti on 22-A(8)(c) read with secti
on 32 of the I.R.O., 1969, was impugned through a Constituti on petition,. A learned Single
Judge of the Lahore High Court, while allowing the above Constituti on petition, made
following observati on on the question, as to whether a Tribunal can go into the vires of
enactment under which it has been created:--

"It is true that a Tribunal cannot go into the vires of an enactment under which it has been
created but certainly it is its duty to determine if it has the jurisdicti on in the given situation.
Reference be made to the judgment of the Supreme Court in Mehr Dad v. Settlement and
Rehabilitati on Commissioner PLD 1974 SC 193."

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

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

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

The fifth case has also no direct relevance, as the mere fact that this Court asked the Electi
on Commissi on to proceed with the reference pending before it under secti on 8-B of the
Act, does not mean that this Court was of the view that the questi on of wires of above secti
on could be competently decided by the Electi on Commission. on the contrary, Peshawar
High Court was specifically directed in the remand order to decide the above question,
which fact militates against the above inference attempted to be drawn by the learned
counsel for the respondents.

Mr. Sharifuddin Pirzada also referred to a passage from a treatise, namely, "Constitutional
Law of Canada" by Peter W. Hogg, 3rd Editi on (Student Edition), in which under the capti on
"Administrative Tribunals with the power to decide questions of law", the author on the basis
of two cases of the Supreme Court of Canada? has observed that such Tribunals have the
power to determine the constitutionality of a provisi on of a law while deciding matters
brought before it. But, this observati on cannot be pressed into service in order to contend
that such a Tribunal can examine the wires of the provision

of law under which it has been created.

????????????????? 21. on the other hand, this Court in the case of Mr. Fazalul Quader
Chowdhry and others (supra) has clearly laid down that the Chief Electi on Commissioner is a
statutory authority. As per, Cornelius, C..1.'s finding recorded therein, "it will not be for him
in the discharge of his functions to? questi on the wires of any law". Whereas in the words of
Hamoodur Rahman, J.

"neither the Chief Electi on Commissioner nor the Speaker. could have the jurisdicti on to
questi on the constitutionality of the impugned order. They would have been bound to give
effect to it". The ratio decided of the above Lahore Full Bench case of Akhtar Ali Parvez
appears to be in line with the above judgment of this Court. It has been rightly held therein
that a Tribunal which is the creature of a statute cannot examine the wires of the provision

under which it has been created nor it can examine the validity of the notificati on under
which it has been appointed/constituted. The above second Lahore case mentioned at Serial
No.(iii) viz. The Manager, Khewra Salt Mines, Khewra, also reiterates the above legal
proposition. Whereas above Allahabad High Court Full Bench case, namely, J.K.
Manufacturers Ltd. on the basis of the judgments of Indian Supreme Court referred to
therein has held that the Sales Tax Authorities cannot examine the wires of the Sales Tax
Rules. It has been further held on the basis of an Indian Supreme Court judgment that a
High Court while hearing a reference under secti on 66 of the late Indian Income Tax Act,
1922, had no power to examine the wires of the statutes.

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

The above case also does not advance the case of the respondents.
The regulati on which was framed by the Secretary of State in exercise of the power
contained in secti on 22(4) of the above Act can be equated with a statutory service rule
and, therefore, the above case cannot be pressed into service for urging that a Tribunal
created under a special law, can declare any provisi on of such law as ultra wires particularly
the provision, which has created it. on the contrary, the ratio decided of the above case is
that a Special Tribunal has no power even to render a declarati on of a binding effect as to
the ultra wires of a statutory regulati on in the absence of express provisi on of law.

I may point out that there is distincti on between a provisi on of a statute, which creates a
Special Tribunal and a provisi on of such statute which specifies disputes/matters over which
such a Special Tribunal will have jurisdiction. The Special Tribunal so created cannot decide
that the provisi on under which it has been created is ultra wires the Constituti on or that its
appointment/constituti on is defective or invalid. But, it will have jurisdicti on to decide the
questions, whether it has jurisdicti on over the matter brought before it in terms of the
relevant provisions of the statutes or whether the parties against whom the case has been
fled are amenable to its jurisdiction.

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

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

Subsecti on (1) of secti on 5 of the above Act defines the powers of the Tribunal with
reference to above secti on 4 by providing that a Tribunal may on appeal, confirm, set aside,
vary or modify the order appealed against. Whereas subsecti on (2) there of provides that
the Tribunal shall for the purpose of deciding any appeal be deemed to be a Civil Court and
shall have the same powers as are vested in such Court under the Code of Civil Procedure,
1908 Act (V of 1908) including the powers of--

(a) enforcing the attendance of any pers on and examining him on oath;

(b) compelling the producti on of documents;

(c) issuing commissi on for the examinati on of witnesses and documents.

In my view the above subsecti on (2) of secti on 5 does not extend the jurisdicti on of the
Tribunal by providing that the Tribunal shall be deemed to be a Civil Court for the purpose
of deciding an appeal before it but the object seems to be to provide a provisi on for
regulating the procedural matters. We find identical provisi on in other enactments. It will
suffice to refer to secti on 64 of the Act (i.e. The Representati on of the People Act, 1976) and
secti on 45(1) of the Senate (Election) Act, 1975, which are couched in identical words. The
former secti on reads as under:--

"Secti on 64. Power of the Tribunal.--- The Tribunal shall have all the power of a Civil Court
trying a suit under the Code of Civil Procedure, 1908 Act (V of 1908) and shall be deemed to
be a Civil Court within the meaning of sections 476, 480 and 482 of the Code of Criminal
Procedure, 1898 (Act V of 1898)."

Can it be said that an Electi on Tribunal has co-extensive jurisdicti on with a Civil Court
having general jurisdicti on in matters other than procedure?

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

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

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

????????????????? Mr. Syed Sharifuddin Pirzada has also referred to Order XXXIII,
????????????????? Rule 6 of the Supreme Court Rules, which provides that "Nothing in these
??? rules shall be deemed to limit or otherwise affect the inherent powers of the ?? Court to
make such orders as may be necessary for the ends of justice or to ???? prevent abuse of the
process of the Court". To reinforce the above submission, ?????? he has referred to the case
of Noora and another v. The State PLD 1973 SC 469, the case of Said Mian and another v.
Mian Said Baghdad and another ????? 1980 SCMR 420, the case of Muhammad Aslam and
another v. Munshi Muhammad Behram and another 1991 SCMR 1971, the case of Mst.
Safyya and another v. Muhammad Rafique and 6 others PLD 1993 SC 62 and the case
?????????????? of Muhammad Tufail and another v. Mirza Azizullah and 14 others 1994
SCMR 347.

?????????????????
In the above first case, this Court, while dealing with the question, ? whether in a criminal
matter it can re-examine the evidence keeping in view ???? the practice which was followed
in such matters by the Privy Council and the Federal Court of India, observed as under.-?
?????????????????
"From this day onwards, it is suggested, the Supreme Court did ????????? become an
appellate Court even in criminal matters and there was no ?????????????? longer any analogy
between it and the Privy Council or the Federal ??????? Court. It was the highest Court at the
apex of the judicial system in the ?????????????? country and it was armed with all the
powers of a Court of Appeal without any limitations whatsoever. Therefore, the decisions of
the ?? Privy Council or. the Federal Court circumscribing their own ????????????? jurisdicti on
by self-imposed restrictions necessitated both by the
????????????????? extraordinary nature of the jurisdicti on exercised by the Privy Council and
the special circumstances under which it functioned hearing ?????? .appeals from distant
lands inhabited by different types of people, no ???????????????? longer had any relevance in
the context of its jurisdicti on as a
????????????????? Constitutional Court of Appeal functioning within the country at the apex
of its judicial system."
????????????????? In the second case the questi on in issue before this Court was, as to
????????????????? whether this Court while granting leave to appeal against an order of
acquittal ????????????? passed by the High Court has the power to order the arrest of the
acquitted ?? person, pending the disposal of the appeal? The above questi on was answered
in the affirmative after referring to Article 187(1) of the Constitution, the ????????????
corresponding Article of the Indian Constitution, namely, Article 210(2) and the case-law in
the following terms:--

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

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

26. on the other hand, Mr. Khalid Anwer has drawn our attenti on to Article 175 of the
Constituti on which deals with the establishment and jurisdicti on of the Supreme Court and
the High Courts in the Provinces and clause (2) of which provides that "No Court shall have
any jurisdicti on save as is or may be -conferred on it by the Constituti on or by or under any
law". He has further pointed out that original clause (1) of Article 187 did not contain the
words "Subject to clause (2) of Article 175; but they were added by the Constituti on (Fifth
Amendment) Act, 1976) (Act LXII of 197(>) with effect from 13-9-1976. After the decisi on in
the case of Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273, which was rendered on 15-
7-1976 and in which it was held that under Articles 199 and .187 of the Constitution, the
superior Courts while exercising their Constitutional jurisdicti on had the power to set aside
actions taken or orders passed by Executive Authorities notwithstanding finality conferred
by Special defence laws as the Constituti on overrides all the laws including defence laws.
The petitioner was granted bail in exercise of the power contained in clause (1) of Article 187
of. the Constituti on by this Court. It may be advantageous to reproduce from the opini on
of Muhammad Afzal Cheema, J, the following observati on on the above question:--

"Considering the entire positi on in the background explained above,, the conclusi on I have
reached is that prima facie reasonable grounds appear to exist to give rise to the belief that
the allegations of mala fide may not be untrue. It is nothing but the expressi on of a
tentative view analogous to the opini on of the Court which it is called up on to express at
the pre-trial stage in bail matters under secti on 497, Cr.P.C. I am in respectful agreement
with my learned brother Salahuddin Ahmed, J. that this prima facie finding would be good
enough to justify the .grant of interim bail to the petitioner, and that it was wrongly denied
to him by the High Court. I also respectfully endorse the following observati on of his
Lordship in Manzoor Ilahi v. Federati on of Pakistan P L D 1975 SC 66 wherein incidentally
also the detenti on of the present petitioner was challenged by his brother, `when the liberty
of a pers on is involved a High Court can exercise its jurisdicti on under Article 199 of the
Constituti on and grant him relief even though he has misconceived his remedy and came
up with an applicati on under sections 498 and 561-A of the Criminal Procedure Code'. I am
also of the view that in the circumstances of the case, this Court would be competent to
allow bail to the petitioner in legitimate exercise of its Constitutional jurisdicti on under
Article 187 of the Constitution. The provisi on reads as follows:--
`(187).--(1) The Supreme Court shall have power to issue such directions, orders or decrees
as may be necessary for doing complete justice in any case or matter pending before it,
including an order for the purpose of securing the attendance of any pers on or the
discovery or producti on of any document.'

Doing complete justice is indeed a very comprehensive term and in my humble opini on
means doing real and substantial justice without being fettered by legal formalism, so that
the paramount interests of justice are not allowed to be sacrificed at the altar of mere
technicalities. It is to safeguard these interests that the Constituti on has conferred vast
discretionary powers on the Supreme Court which is on the apex of the judicial hierarchy
and the Court of last resort. This view finds support from the following observati on made by
Hamoodur Rahman, C.J. in Noora's case PLD 1973 SC 469."

27. There is no doubt that in none of the above cases cited by Mr. Syed Sharifuddin Pirzada,
the above amendment made in Article 187(1) of the Constituti on with effect from 13-9-
1976, was noticed. The effect of the above amendment seems to be that the provisi on of
clause (1) of Article 187 can be pressed into service subject to clause (2) of Article 175 of the
Constitution. In other words, the Supreme Court shall have no jurisdicti on save as is or may
be conferred on it by the Constituti on or by or under any law. To put it differently clause (1)
of Article 187 itself does not confer any jurisdicti on on the Supreme Court but it provides a
provisi on whereby the Supreme Court can exercise its jurisdicti on conferred by the
Constituti on or by any other law more effectively by issuing such directions, orders or
decrees as may be necessary for doing complete justice in any case or matter pending
before it and in doing so the. Supreme Court will not be fettered with technicalities which
may result in miscarriage of justice. It may be pointed out that - there is no similar
amendment made in Article 210(2) of the Indian Constituti on and, therefore, the decisions
of the Courts of Indian jurisdicti on will not be relevant for the purpose of construing clause
(1) of Article 187 of the Constituti on after 13-9-1976.

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

28. A perusal of the above-quoted clause indicates that it can be pressed into service if the
following two conditions are fulfilled:--

The case involves a questi on of public importance; and

(ii)?????????? the questi on so involved pertains to the enforcement of any of the

Fundamental Rights contained in Chapter 1 of dart II of the Constitution.
In this regard reference may be made to the case of Syed Wasey Zafar and 4 others v.
Government of Pakistan through Secretary, Finance and others PLD 1994 SC 621, in which I
have highlighted the above aspect, at pages 636 to 638 and pointed out the distincti on
between the jurisdicti on of the Supreme Court under Article 184(3) and of a High Court
under Article 199 of the Constitution.

29. In the case in hand the question, whether secti on 8-B of the Act is ultra vires the
provisions of the Constitution, no doubt is a questi on of public importance and, therefore,
the above first requirement is met.

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

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

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

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

(2)?????????? If any questi on arises whether a member of the Majlis-e-Shoora (Parliament)

has become disqualified from being a member, the Speaker or, as the case may be, the
Chairman shall refer the questi on to the Chief Electi on Commissioner and, if the Chief Electi
on Commissioner is of the opini on that the member has become disqualified, he shall cease
to be a member and his seat shall become vacant."

Secti on 8-B of the Act:

"8-B. disqualificati on on_ ground of defection, etc.--- If a member of a House,-- '

(a)?????????? having been elected as such as a candidate or nominee of a political? party, or

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

(2)?????????? If any questi on arises whether a member of a House has become disqualified
under subsecti on (1) from being a member, the questi on shall, on a reference by the
Leader of the Parliamentary Party concerned, be determined by the Electi on Commission.'

(3)?????????? An appeal against a decisi on of the Electi on Commissi on under subsecti on

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

32.? A perusal of the above-quoted clause (2) of Article 63 of the Constituti on indicates that
it provides that if any questi on arises, whether a member of the Majlis-e-Shoora
(Parliament) has become disqualified from being a member, the Speaker or as the case may
be, the Chairman shall refer J the questi on to the Chief Electi on Commissioner and in case
the Chief Electi on Commissioner is of the opini on that the member has become
disqualified, he shall cease to be a member and his seat shall become vacant.

Whereas subsecti on (1) of secti on 8-B of the Act deals with? the questi on of? is qualificati
on on the ground of defection. The above provisi on will be dealt with in detail at a latter
stage. while dealing with the questi on of vires. Subsecti on (2) of the above secti on lays
down that if any questi on arises, whether a member of a House has become disqualified
under subsecti on (1) from being a member, the questi on shall, on a reference by the
Leader of the Parliamentary Party concerned, be determined by the Electi on Commission.
Whereas subsecti on (3) there of provides a right of appeal to this Court within thirty days of
the decisi on of the Electi on Commission.

33. In my humble opinion, there is no conflict between clause, (2) of Article 63 of the
Constituti on and subsections (2) and (3) of secti on 8-B of the Act. Since the ground of
defecti on was not covered by any of the sub-clauses of clause (1) of Article 63 and as the
Legislature thought to provide the same through the above provisi on of subsecti on (1) of
secti on 8-B, it deemed proper to provide a superior forum in the form of Electi on Commissi
on which consists of the Chief Electi on Commissioner as the Chairman and two Judges of
the I High Courts as its members in place of Chief' Electi on Commissioner alone

and subsecti on (3) also confers the right of appeal to this Court which was not ! provided in
clause (2) of Article 63 of the Constitution. The judgment of this j Court cited by Mr. Syed
Sharifuddin Pirzada, namely Raja Muhammad Afzal v. Ch. Muhammad Altaf and others 1986
S C M R 1736 does not support the case of the respondents. on the contrary,' it is in line
with the view which I am inclined to take. As one of the basic questions involved in the
above report was, whether the judicial adjudicati on would prevail over the executive or
administrative determination, in that context, it was held that more plenary adjudicati on
would prevail over the one which was summary, whether in procedure or in effect. As
pointed out hereinabove that subsecti on (2) of secti on 8-B of the Act provides a superior
forum, of which decisi on is subject to right of an appeal to an aggrieved party to this Court
and, hence, it is a superior forum. The mere fact that clause (2) of Article 63 of the Constituti
on is a Constitutional provisi on and subsections (2) and (3) of secti on 8-B have been
enacted by the Parliament through Act XXII of 1985 will not militate against the validity of
the above provisions if the same have been validly enacted by the Parliament. The above
contenti on has, therefore, no force even on merits.

34. Adverting to Mr.Syed? Sharifuddin? Pirzada's contenti on that secti on 8-B of the Act is in
fact ultra vires the provisions of the Constituti on and, therefore, the references filed by the
appellant under the aforesaid provisi on were liable to be dismissed, it may be observed that
Mr. Syed Sharifuddin Pirzada, learned counsel for the respondents and Mr. Khalid Anwer,
learned counsel for the appellant, have addressed very learned and exhaustive arguments in
support of their respective point. of view. The thrust of the arguments of Mr. Syed
Sharifuddin Pirzada was that the above provisi on of the Act is violative of Articles 2A, 4, 14,
17, 19, 63 and 66 of the Constitution. Whereas the contenti on of Mr. Khalid Anwer was that
since our Constituti on is founded on Parliamentary democracy, the impugned provisi on in
fact reinforces the above system by providing for defecti on and, therefore, the same is not
violative of any of the above provisions of the Constitution. He has further pointed out that
P.P.P. and P.M.L.(N.), which were the main political parties having representati on in the
National and Provincial Assemblies, in fact obtained mandate from the voters to strengthen
the defecti on law in order to eliminate the above evil.
35. It seems that prior to the incorporati on of secti on 8-B, subsecti on (2) of secti on 8,
which was enacted through Act XIII. of 1962 on or about 15-7-1962, provided for defection.
The above secti on reads as follows:--

"8. Certain disqualifications for being a member of the National Assembly or a Provincial
Assembly.-- (1) A pers on who has been an office-bearer of the Central or a Provincial
Committee of a political party dissolved under subsecti on (2) of secti on 6 or who has been
convicted under secti on 7 shall be disqualified from being elected as a member of the
National Assembly or a Provincial Assembly for a period of five years from the date of such
dissoluti on or conviction, as the case may be.

(2)?????????? If a pers on having been elected to the National or a Provincial Assembly as a

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

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

The above Ordinance expired on or about 6-2-1993 and thus the original secti on 8-B of the
Act stood revived.
It will not be out of context to point out that the proviso to clause (5) of Article 96 of the
Constituti on also contained a provisi on to discourage defection, which reads as under:--

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

However, the above Article 96 was omitted by President Order No.14 of 1985 on 2-3-1985.
36. In India several attempts were made without any result to introduce Bills for providing
for defection. However, eventually by the Constituti on 52nd Amendment) Act, 1985, with
effect from 1-3-1985, clause (2) in Article 102 and Tenth Schedule to the Constituti on were
added. It may be observed that clause (1) of above Article 102 of the Indian Constituti on
provides various disqualifications for a pers on being chosen as and for being a member of
either House of Parliament, whereas above added clause (2) lays down as under:--

"(2) A pers on shall be disqualified for being a member of either House of Parliament if he is
so disqualified under the Tenth Schedule."

The above Tenth Schedule runs into about three pages. For the purpose of the present
controversy, it will suffice to reproduce paragraph 2 thereof, which reads as follows:--

"2. disqualificati on on ground of defection.---(1) Subject to the provisions of paragraphs 3,

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

(a)?????????? if he has voluntarily given up his membership of such political

party;????????????????? or

(b)?????????? if he votes or abstains from voting in such House. contrary to any directi on
issued by the political party to which he belongs or by any pers on or authority by it in this
behalf, without obtaining, in either case, the prior permissi on of such political party, pers on
or authority and such voting or abstenti on has not been condoned by such political
????????????????? party, pers on or authority within fifteen days from the date of such voting
or abstention.
?
Explanation.--- For the purposes of this sub-paragraph,--

(a)?????????? an elected member of a House shall be deemed to belong to the political

party, if any, by which he was set up as a candidate for electi on as such member;

(b)?????????? a nominated member. of a House shall,--, ,

(i) where he is a member of any political party on the date of his nominati on as such
member, be deemed to belong to such political party;.

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as
the case may be, first becomes, a member before the expiry of six months from the date on
which he takes his seat after complying with the requirements of Article 99 or, as the "case
may be, Article 188

(2)?????????? An elected member of a House who has been elected as such otherwise than
as a candidate set up by any political party shall be disqualified for being a member of the
House if he joins any political party after such election.
(3)?????????? A nominated member of a House shall be disqualified for being a member of
the House if he joins any political party after the expiry of six months from the date on
which he takes his seat after complying with the requirements of Article 99 or, as the case
may be, Article 188.

(4)?????????? Notwithstanding anything contained in the foregoing provisions of this

paragraph a pers on who, on the commencement of the Constituti on (Fifty- Second
Amendment) Act, 1985, is a member of a House (whether elected or nominated as such)
shall,--

(i) where he was a member of a political party immediately before such commencement, be
deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a
member of such House as a candidate set up by such political party;

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

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

37. Mr. Syed Sharifuddin Pirzada, learned counsel for the respondents, also invited our
attenti on to the fact that in the Constituti on of Democratic Socialist Republic of Sri Lanka,
some transitional provisions were incorporated, which inter alia catered for the defection. Be
that as it may, the questi on in issue is, as to whether secti on 8-B of the Act is violative of
any of the provisions of the Constitution. If it is not, in that event the fact that India or Sri
Lanka have incorporated provisions for defecti on in their Constitutions, will have no
consequence.

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

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

It may be stated that page 124 of the above book "Reflections on Islam", photostat copy of
which has been furnished by the learned counsel" for the respondents, does not deal with
the point in controversy. It touches up on the questi on of Islamic justice.

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

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

In the above two reports, this Court has held that Article 2A which incorporates Objectives
Resoluti on as a part of the Constitution, cannot be treated as a provisi on supra-
Constitutional, but is a provisi on at par with the other provisions of the Constitution.

on the other hand, Mr. Khalid Anwer, learned counsel for the appellant, has invited our
attenti on to the objectives Resoluti on which has become part of the Constituti on by virtue
of above Article 2A of the Constituti on as pointed out hereinabove, which inter alia provides
that the sovereignty over the entire Universe belongs to Almighty Allah alone and the
authority to be exercised by the people of Pakistan within the limits prescribed by Him is a
sacred trust arid that the State shall exercise its powers and' authority through the chosen
representatives of the people. According to him, if a member is erected by the voters on the
basis of a ticket awarded by a political party, he commits breach of trust if he defects or
withdraws from such political party without obtaining fresh mandate from the voters. In
furtherance of his above submissi on he has invited our attenti on to the relevant portions of
and also to some Hadith from the book "Al-Hadis" in English translati on of commentary of
Mishkat-ul-Masabih by Alhal Maulana Fazlul Karim. It win suffice to reproduce the relevant
portions of the English translati on of the above Surahs, Which read as follows:--

91.?????????? Fulfil the covenant of Allah when ye have covenanted, and break not your
oaths after the asseverati on of them, and after ye have made Allah surety over you. Lol
Allah knoweth what ye do."

77.?????????? Lo! those who purchase a small gain at the cost of Allah's covenant and their
oaths, they have no porti on in the Hereafter. Allah will neither speak to them nor look up on
them on the Day of Resurrection, nor will He make them grow. Theirs will be a painful
doom."

27.???????????????????????????? O ye who believe! Betray not Allah and His Messenger, nor
knowingly betray your trusts."

40. The above-quoted par,. 2 from Ansari's Report is to be viewed keeping in mind that
majority members of Ansari Commissi on were of the view that political parties system does
not fit in with the concept of Islamic State. The above par,. 2 is to be read with para. 8 of the
above Report, which reads as follows:--

"8.Since the basic objective of every polities party is to capture power, it tends to make
consciously or subconsciously every efforts, and resorts to all possible tactics to grab power.
It
provokes every variety of regional, tribal, linguistic and even _.. (full not supplied)."
41. Hamoodur Rahman, former chief Justice of this Court, in his paper under the capti on
"The Concept of State in Islam" published in Journal Part of PLD 1979 at pages 1 to 19, also
suggested the Presidential form of Government. In that context, he observed that a member
once elected should functi on as an independent member and not to be tied to any political
party or its programme. So long as we have parliamentary form of Government, it cannot be
run unless the members of the Assemblies are subject to party discipline. The above-quoted
portions of the aforesaid Surahs, on the contrary, indicate that a betrayal of trust reposed in
a pers on is a sin and, therefore, if a member takes votes on the representati on that he
belongs to a particular political party which projects certain objects in its manifesto and then
for personal gains he defects or withdraws from such political party, he commits breach of
trust in terms of the above Surahs. Neither the above two judgments of this Court nor secti
on 4 of the above Act, in any way advances the case of the respondents.

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

43. Reverting to Article 17 of the Constituti on which guarantees freedom of association, it

may be stated that clause (1) there of provides that every citizen shall have the right to form
associati on or unions subject to any (. reasonable restrictions imposed by law in the interest
of sovereignty or L integrity of Pakistan, public order or morality. Admittedly secti on 8-B of
the Act does not, in any way, impinge the rights guaranteed by above clause (1).

Clause (2) of aforesaid Article 17 lays down that every citizen not being in the service of
Pakistan shall have the right to form or to be a member of a political party subject to
reasonable restrictions imposed by law in the interest of sovereignty and integrity of
Pakistan etc.

44. There are three recent judgments on the constructi on of above Article 17 of the
Constituti on rendered by this Court, namely, the case of Miss Benazir Bhutto v. Federati on
of Pakistan and another P L D 1988 SC 416, the case of Mrs. Benazir ~Bhutto and another v.
Federati on of Pakistan and another P L D 1989 SC 66 and the case of Mian Muhammad
Nawaz Sharif v. President of Pakistan and others P L D 1993 SC 473.

In the first case, Miss Benazir Bhutto impugned through a Constituti on petiti on under
Article 184(3) of the Constituti on certain provisions of the Political Parties Act relating to
registrati on of political parties for violati on of Article 17(2) of the Constitution. The
impugned provisions were struck down on the ground of violati on of above Article.
Muhammad Haleem, C.J., Nasim Hasan Shah and Zaffar Hussain Mirza, 33. in their opinions
emphasised the importance of the existence of political parties in a Parliamentary form of
Government as under besides the other learned Judges, who also appended their separate
notes:--
"A political party has its significance in the context of the political system provided by the
Constitution. Our Constituti on is of the pattern of Parliamentary democracy with a Cabinet
system based on party system as essentially it is composed of the representatives of a party
which is in majority. Bagehot called it `a hyphen that joins, a buckle that fastens, the
executive and legislative together'. It formulates the general policy of the Government and is
collectively responsible to the Parliament for that. Apart from this general functi on of
coordinati on and leadership, it exercises actual executive and legislative functions. (Basu's
Commentary on the Constituti on of India, Third Edn., Vol. 1, p.459.

Parliamentary Government is a Government of the party and a party Government is a vital

principle of a representative Government. The political party is a connecting link between
the Executive and the Legislature, between the Cabinet and the Parliament. It is also a
connecting link between the Cabinet and the people and between the necessary and
important features in a Parliamentary democracy. They are important because the group
victorious at a general electi on becomes the- Government. In a nutshell a Parliamentary
democracy depends for its success on the organizati on of political parties and its disciplined
support of Parliamentary majority is sine qua n on of Cabinet Government composed of the
Prime Minister and the Ministers from the majority party. They thus provide leadership to
public offices through the elections. They are now necessary part of a democratic
Government. Rival parties make elections meaningful by giving voters a choice among
candidates who represent different interests and points of view. The party or parties that are
out of power serve as a `loyal opposition' as understood in Parliamentary democracy. That is,
they criticise policies and actions of the party in power. In this way the party in power is
called on to justify its actions and is made responsible to the people."

"Persons elected to the Legislature in their personal capacities have hardly any importance.
They just toss around on the political scene, rudderless and without a destination. It is only
when they band? themselves into a group, as a party, that they become a force exercising
some influence by their activities. It is only as members of a political party and not as
individual members of the legislature; can they achieve their objectives. As observed by
Cornelius, CJ. in Maulana Maudoodi's case (aforesaid at p.692) a `political party has a right to
exert itself using all available channels of mass communicati on to propagate its views in
relations to the whole complex of the administrative machine including the legislatures, in
respect of matters which appear to it to require attenti on for the ameliorati on of conditions
generally throughout the nation, for improvements particularly in administrative procedures
and policies as well as in the legislative field, even to the extent of proposing and pressing
for amendment of the Constituti on itself.

Indeed, our very State of Pakistan itself could never have come into existence if a political
party (the Muslim League) was not allowed to. functi on as a party, without let or hindrance.
As early as in 1942 in a speech made by the Quaid-e-Azam at a recepti on in Delhi on the
occasi on of his birthday on 25th December, he said:
"The eliminati on of a political party from contesting electi on was considered by the learned
Attorney-General as no invasi on on the fundamental right conferred under Article 17(2),
because despite refusal to register a party or the cancellati on of its registration, it will still
exist as a party until it is dissolved under secti on 6. This argument overlooks the very basis
of the system of Government providing for Parliamentary democracy, in which various
parties in the country are formed with a view to capture the seat of power in order to
implement the policy and programme which they consider beneficial for the progress and
advancement of the country. Under the Constituti on the achievement of this objective is
through the means of election. Therefore, if a political party is barred and kept away from
the election, its existence would hardly remain meaningful and effective. It may be pointed
out that Article 17 f 2) does not guarantee a right to form a party but a `political' party.
Consequently the right to contest the electi on to the National and Provincial Legislatures is
inherent in the right guaranteed. Depriving a party of its right to participate in electi on
would be its virtual dissolution."

In ,the second case, Mrs. Benazir Bhutto and another challenged secti on 21 of the
Representati on of the People Act, 1976, as amended by Ordinances Il and VIII of 1985,
through a Constituti on petiti on filed under Article 184(3) of the Constituti on on the
ground that it failed to ,recognise the existence and participati on of the political parties in
the process of electi on particularly in the matter of allocati on of symbols by providing
allocati on of symbols to individuals. The same was allowed as under:--

?our, conclusi on therefore ,, is that secti on 21 of the Act as amended by Ordinances Nos.II
and VIII of 1985, is violative of Fundamental Right contained in Article 17(2) of the Constituti
on in so far as, it fails to recognize the existence and participati on of the Political Parties in
the process of elections, particularly in the matter of allocati on of symbols and is for that
reas on void to that extent. Every Political Party is eligible to participate in the Elections to
every seat in the National and the Provincial Assemblies scheduled to be held on the 16th of
November, 1988. The Political Parties shall be entitled to avail of the provisions of sub-mile
(2) of Rule 9 of the Rules to seek allotment of any of the prescribed symbols. Both the
petitions are allowed in these terms leaving the parties to bear their own costs. Federal
Government shall pay a fee of Rs.5,000 each, to two amicus curiae Mr. Ali Ahmed Fazeel and
Mr. S.M Zafar.?

In the third case, dissoluti on of the National' Assembly and the dismissal of the Prime
Minister and hip Cabinet under Article 58(2)(b) of the Constituti on by the President was
challenged. By majority of ten to one, it was held that the above acti on was violative of inter
alia Article 17(2) of the. Constituti on and again emphasis was given to the importance of
political party. It will suffice to reproduce from the opini on of Nasim Hasan Shah, C.J. the
following observations:-

"Accordingly, the basic eight `to farm to be a member of a political party' conferred by
Article 17(2) comprises the right of that political party not only to form a political party,
contest elections under its banner but also, after successfully contesting the elections, the
right to form the Government if its members, elected to that body, are in possessi on of the
requisite majority. The Government of the political party so formed must implement the
programme of the political party which the electorate has mandated it to carry into effect.
Any unlawful order which results III frustrating this activity, by removing it from office before
the completi on of its normal tenure would, therefore, constitute an infringement of this
Fundamental Right."

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

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

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

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

46. Mr. Syed Sharifuddin Pirzada has invited our attenti on to the case of Pakistan through
Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umer Khan
(deceased) now represented by Khawaja Muhammad Khan, of Hod and others 1992 S C M R
2450, in which Shafiur Rahman, J. quoted a passage from the opini on of Lord Denning M.R.
in the case of. Bromley Lond on Borough Council v. Greater Lond on Council and another
(1982) 2 Weekly Law Report 62, wherein Lord Denning pointed out that a manifesto is issued
by a political party in order to get votes and, therefore, it is not to be taken as gospel and
that it is not regarded as a bond, signed, sealed and delivered. The ratio of the above
observations seems to be that a political party is free to modify its manifesto or not to put
into operati on those provisions which are quite unworkable or impossible. The above
observations do not, in any way, militate against the fact that both the above main political
parties were conscious of the factum while framing their manifestos that floor-crossing was
an evil. It is, therefore, evident that secti on 8-B of the Act is in line with the above-quoted
portions of the manifestoes of the two main political parties of Pakistan. I have had the
occasi on to comment on the above aspect in my opinions in the case of Federati on of
Pakistan through Secretary, Ministry , of Law, Justice and Parliamentary Affairs, Islamabad
and others v. Mr. Aftab Ahmed Khan Sherpao. PLD 1992 SC 723 and in the case of Sardar
Muhammad -Muqeem Khoso v. President of Pakistan P L D 1994 SC 412 as follows:--

"Observati on in the case of Mr. Aftab Ahmed Khan Sherpao

If a Government, in order to remain in power, has to purchase the loyalties of the M.P.As. by
allotting plots or granting other benefits in cash or kind at the cost of the public exchequer
and/or is to induct them as Ministers and Advisors for the above purpose, in my humble
view, it cannot be said that the Government is being carried on in accordance with the
provisions of the Constitution."
Observati on in the case of Mr. Sardar Muhammad Muqeem Khoso:

"36.1 may point out that under the Objectives Resoluti on which has now become
substantial part of the Constituti on of the Islamic Republic of Pakistan, 1973 (hereinafter
referred to as the Constitution) by virtue of Article 2-A thereof, sovereignty over the entire
Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of
Pakistan through their chosen representatives within the limits prescribed by Him, is a sacred
trust. Any abuse of positi on on the part of a chosen representative will amount to breach of
the above sacred trust entailing heavenly and worldly punishment. The aforesaid Acts IV and
V of 1977 and the President Order 16 of 1977 and the Order (i.e. P.O. 17 of 1977) were
designed and intended to curb and discourage the tendency on the part of public
representatives to exploit their positi on as such for their personal gains. Unfortunately the
above statutory provisions, which are for public good in order to ensure unadulterated and
incorrupt democracy, have not been effectively enforced and given effect, with the result
that some of the public representatives become purchasable commodity and they change
loyalty for monetary and other gainful considerations and thereby commit breach of the
mandate of their voters and the political party to which they belong. This. betrayal of trust is
now popularly known as horse-trading. This cancerous disease in the polity of our country is
contributing a lot in destabilizing the democratic institutions and thereby adversely affecting
the economic growth of the country besides affecting the good name of the country
adversely in the comity of nations. The above tendency is to be checked and discouraged at
all levels."

47. It may not be out of context to menti on that my above latter judgment was affirmed by
a Full Bench of this Court consisting of Shafiur Rahman, Abdul Qadeer Chaudhry, Saleem
Akhtar, Saeeduzzaman Siddiqui and Wali Muhammad Khan, JJ. in the case of Rai Rashid
Ahmed Khan v. President of Pakistan P L D 1994 SC 36.

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

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

48. We may now refer to the case-law and some of the treatises on the subject referred to
by the learned counsel for the parties.

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

on the other hand, Mr. Khalid Anwer, learned counsel for the appellant, besides relying up
on the above judgment of the Indian Supreme Court in the case of Shri Kihota Holloh on
(supra), has relied up on the case of Ben F. Ray v. Edmund Blair 343 U.S. 214, and
Constitutional Law of India, 3rd Editi on by Servai.

In the above first case cited by Mr. Syed Sharifuddin Pirzada, the questi on before the House
of Lords was, whether a rule which purports to confer on a trade uni on registered under the
Act of 1871, a power to levy contributi on from its members for the purpose of securing
Parliamentary representati on was ultra vires. The House of Lords affirmed the decisi on of
the Court of Appeal and held that the above rule was ultra vires. However, Lord Shaw of
Dunfemline also commented up on the undertaking which the Labour Party used to obtain
from a candidate of the Parliament though not member of the party for its support in the
elections as under:-.

"In brief, my opini on accordingly is: The proposed additional rule of the society that 'all
candidates shall sign and respect the conditions of the Labour Party, and be subject to their
`whip' the rule that candidates are to be `responsible to and paid by the society', and, in
particular, the provisi on in the constituti on of the Labour Party that `candidates and
members must accent this Constitution, and agree to abide by the decisi on of the
Parliamentary party in carrying out the aims of this Constitution', are all fundamentally
illegal, because they are in violati on of that sound public policy which is essential to the
working of representative Government.

Parliament is summoned by the Sovereign to advise His Majesty freely. By the nature of the
case it is implied that coercion, constraint, or a money payment, which is the price of voting
at the bidding of others, destroys or imperils that functi on of freedom of advice which is
fundamental in the very Constituti on of Parliament. Inter alia, the Labour Party pledge is
such a price, with its accompaniments of un ?Constitutional and illegal constraint or
temptation.

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

It may also be advantageous to reproduce paras. 38, 44 and 53 from the majority view from
the case of Mhoto Hollohan v. Zachillhu 1992 Suppl. (2) SCC, which read as follows:--

"38. The argument that the un-Constitutional remedies against the? ?????????????????
immorality and unprincipled chamele on -- like changes of political hues in pursuit of power
and pelf suffer from something violative of some basic features of the Constitution, perhaps,
ignores the essential organic and evolutionary character of a Constituti on and its flexibility
as a living entity to provide for the demands and companions of the charging times and
needs. The people of this country were not beguiled into believing that the menace of
unethical and unprinciple? changes of political? affiliati on is something which the law is
helpless against and is to endured as a necessary concomitant of freedom of conscience.
The onslaughts on their sensibilities by the incept unethical political defections did not dull
their percepti on of this phenomen on as a esker eating into the vitals of those values that
make democracy a living and worthwhile fault. This is pre-eminently an area where Judges
should defer to legislative percepti on of and reacti on to the pervasive dangers of
unprincipled defections to protect the community. 'Legislati on may begin where an evil
begins'. Referring to the judicial philosophy of Justice Holmes in such areas, Pohlman again
says:--
A number of Holme's famous aphorisms point in the directi on that Judges should defer
when the Legislature reflected the pervasive and predominant values and interests of the
community. He had, for example, no `practical' criteri on to go on except `what the crowd
wanted'. He suggested, in a humorous vein his epitaph ... No Judge ought to interpret a
provisi on of the Constituti on in a way that would prevent the American people from doing
what it really wanted to do. If the general consensus was that a certain conditi on was an
`evil' that ought to be corrected by certain means, then the Government had the power to`
do it. `Legislati on may begin where an ' evil begins'. `Constitutional law like other mortal
contrivances has to take some chances'. Some play must be allowed to the joints if the
machine is to work'. All of these rhetorical flourishes suggest that Holmes deferred to the
Legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and
values of the American public.

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

53. Accordingly we hold:--

That the paragraph 2 of the Tenth Schedule to the Constituti on is valid. Its provisions do not
suffer from the vice of subverting democratic rights of elected Members of Parliament and
the Legislatures of the States. It does not violate their freedom of speech, freedom of vote
and conscience as contended.

The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary
democracy by curbing unprincipled and unethical political defections.

The contenti on that the provisions of the Tenth Schedule, even with the exclusi on of
paragraph 7, violate the basic structure of the Constituti on in that they -affect the
democratic rights of elected Members and, therefore, of the principles of Parliamentary
democracy is unsound a pd is rejected."

It may be pertinent to menti on that earlier a Full Bench of Punjab and Haryana High Court,
comprising the learned Chief Justice and four compani on Judges, in the case of Parkash
Singh Badal and others v. Uni on of India and others A I R 1987 Punjab and Haryana 263,
held that above paragraph 2 of the Tenth Schedule to the Indian Constituti on was intra vires
and that it was not destructive of the basic structure or democratic set-up of the
Constitution.
NA. Palkhivala in his above treatise has adversely commented as under on the Constituti on
(Thirty- Second Amendment) Bill, 1973, which' was then pending in the Indian Parliament for
providing for defection. The above bill was passed as the defecti on law has been provided
by the Constituti on (Fifty-Second Amendment) Act, 1985:

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

But the truly savage part of the Bill is another provisi on which has nothing to do with
defections and which seeks to enact that if a member votes or abstains from voting in the
House `contrary to any directi on issued by such political party or by any pers on or
authority authorised by it in this behalf without obtaining prior permissi on of such party,
pers on or authority', he would incur the extreme penalty of disqualification."

Rodney Brazier at page 48 in his above treatise has made the following observation:--

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

Whereas at page 52 he made the following suggesti on to remedy the defection:--

"Constituents should be given a recall power so that it a given porti on of voters in a

constituency wanted to force their member to fight a bye-election, they could vote to do so,
and if the necessary votes were achieved, his seat would be vacated."

It may be observed that Sir Ivor Jennings it. him above treatise discussed a the questi on of
casting votes by a member of the Parliament against the directi on of his party. With
reference to Labour Party, he pointed out that the National Executive Committee of the said
party does not endorse the candidature of such a member for the next election, which is one
of the means to discourage defection. Para. 19 from the Report of the Constituti on
Commission, Pakistan reads as follows:--

"(19)Sir Winst on Churchill is reported to have described the duties of a member of

Parliament as follows:--

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

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

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

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

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

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

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

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

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

N.H. Seravai on Constitutional Law of India, 3rd Editi on (supra) condemns the practice of
defecti on and has observed that defecti on should include abstenti on to vote by a member
against his defects should be made to resign.

Rodney Brazier in his aforesaid treatise has observed that "once returned to the House of
Commons the Member's party expects him to be loyal", which according to him "is not
entirely unfair or improper for it is the price of the party's label which secured his election".
The majority of the Judges of the Supreme Court of United States in the ease of Ben F. Ray ..
Edmund Blair (supra) held that the requirement of the Democratic Party of Alabama State
that a candidate for electoral college should sign a pledge to vote to the Party's candidates
for Presidential and Vice-President's elections before certificati on of his candidature by the
party was not violative of any Constitutional right.

51. The case of Amalgamated Society of Railway Servants (supra) relied up on by Mr. Syed
Sharifuddin Pirzada in which one of the Lords, namely, Lord Shaw observed that additional
rule of the Labour Party requiring that "all candidates shall sign and respect the conditions
of the Labour Party, and be subject to their whip", the rule that candidates ate tote
"responsible to anti paid by the society", and in particular the provisi on in the constituti on
of the Labour Party that "candidates and members must accept this constitution, and agree
to abide by the decisi on of the parliamentary party in carrying out aims of this Constituti on
"are fundamentally illegal because they are in violati on of That sound public policy which is
essential to the working of representative Government", are to be viewed with reference to
the controversy which was in issue, in the above case, namely, whether the Labour Party
could frame a rule empowering itself to levy compulsory contributi on from its members for
the purpose of securing Parliamentary representati on by supporting candidates who may
even not be members of the Party which was found ultra vires. Most of the Lords did not
express their views about the above undertaking. It should also not be overlooked that in
England the concept of Parliament is different. The Parliament is summoned to advise His or
Her Majesty freely. This concept is foreign to our Parliament.

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

Mr. Sir Ivor Jerning, in his above treatise has riot in any way advocated the defecti on of the
type with which we are dealing in the present case. He has pointed out the practice
obtaining in the Labour Party of England, namely, they do not endorse candidature of a
member for next election, which voted against the directi on of the Party

52. It may be observed that there cannot be any cavil to the propositi on propounded by Sir
Winst on Churchil that first duty of a Member of Parliament is, to work for the honour and
safety of Great Britiat. Second duty he owes to his constituents to whom he presents arid
third duty he owes to his party organizati on or programme r! may iota pointed out that in
term of above clause (2) of Article 17 of the Constituti on read with the relevant provisi on of
the Act, a political pasty acting in a manner prejudicial to the sovereignty or integrity of
Pakistan is liable to be banned So, honour and safety of Pakistan is foremost important for
the members of the Assemblies.

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

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

At this juncture, I may deal with Mr. Faqir Muhammad Khokhar. Deputy Attorney-General's
submissi on that secti on 8-B of the Act is discriminatory as it is not applicable to
independent members of the assemblies and, therefore, is violative of Article 25 of the
Constitution. It will suffice to observe that since independent members are not elected on
the basis (0 of political parties' tickets, but are elected in their individual capacities, they
constitute a separate class from 'those members elected on the parties' tickets, so there is
no discriminati on within the same class as to attract above Article 25 of the Constitution.

53. Having held that Secti on 8 B of? the? Act does not, in any way, violate Article 17 or
Article 19 of the Constitution, I may now deal with the second P limb of Mr- Shariftiddin'
Pirzada's argument, namely, that the above impugned secti on 8-B of the Act is violative of
Article '63 of the Constitution. According to him, the grounds of disqualifications from being
elected or chosen as, and from being a member of the Parliament ale provided in clause (1)
of the above Article and, therefore, the Legislature could not have provided further grounds
through an enactment, but the same could have been added through 0 Constitutional
amendment. His further submissi on was that as sub-clause (p) of clause (1) of Article 63'
relates to pre-electi on disqualification, secti on 8-B of the Act could not have been enacted
pursuant to the above provision.
on the other hand, Mr, Khalid Anwer has urged that the grounds mentioned in sub-clauses
(a) to (p) of clause (1) of Article 63 of the Constituti on are not exhaustive and as the above
clause does not provide that only the grounds mentioned therein will be the only grounds
for disqualification, the Parliament was competent to add further grounds in view of item 41
of the Fourth Schedule to the Constitution. His further submissi on was that sub-clause (p)
of clause (1~ of above Article 63 cannot be treated as an independent sub-clause but is to
be read with the other sub-clauses and the opening porti on of clause (1) of the aforesaid
Article.

54. Before dealing with the above contention, it may be pertinent to reproduce above
opening porti on of clause (1) of Article 63, sub-clause (p) and Item 41, of the Fourth
Schedule to the Constitution, which contains Federal Legislative List, and which read as
follows:--

Opening porti on of clause (1) of Article 63 and sub-clause (p):

"63.--(1) A pers on shall be disqualified from being elected or chosen as, and from being, a
member of the Majlis-e-Shoora (Parliament), if--

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

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

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

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

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

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

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

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

(i)?????????????????????????????? ... .... ... ... ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ....
... ...
(j)?????????????????????????????? ... .... ... ... ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ..: ... ... ....
... ...

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

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

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

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

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

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

Item 41 of the Fourth Schedule to the Constitution:

"41.??????? Electi on to the office of President, to the National Assembly, the Senate and the
Provincial Assemblies; Chief Electi on Commissioner and Electi on Commission."

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

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

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

It was further observed that items in the Legislative List are not to be read in any narrow or
pedantic sense and they should be construed in broader meaning. The relevant observati on
on the above aspect reads as under:--

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

56. Mr. Khalid Anwar has also referred to Corpus Juris Secundum, Vol, 16 at pages 86 and 87,
where the maxim "expressio unius est exclusio alterius", has been dealt with as under:--

"Applying the maxim, `expressio unius est exclusio alterius', the enumerati on of certain
specified things in a Constitutional provisi on will usually be construed to exclude all things
not thus enumerated. This is a rule used merely in ascertaining the true meaning, and it is
not a rigid rule of universal application, and will yield where an intenti on to the contrary is
indicated or expressed.

The rule should never be applied to obscure the meaning or thwart the purpose of
Constitutional provision. The maxim should be applied with cauti on to provisions of
Constitutions relating to the legislative branch of the Government, since it cannot be made
to restrict the? plenary power of the legislature or to control an express provisi on of the
Constitution."

He has also referred to the American Jurisprudence, Vol.62 at p.678, Process of

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

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

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

57. The same approach was adopted by this Court in the aforesaid three cases referred to
hereinabove in para.49 while construing Article 17(2) of the Constitution. It will suffice to
reproduce para. 17 from my opini on in the case of Mian Nawaz Sharif (supra), which reads
as under:--

"17.??????? I may also observe that there is a marked distincti on between interpreting a
Constitutional provisi on containing a Fundamental Right and a . provisi on of an ordinary
statute. A Constitutional provisi on containing Fundamental Right is a permanent provisi on
intended to cater for all time to come and, therefore, while interpreting such a provisi on the
approach of the Court. should be dynamic, progressive and liberal keeping in view ideals of
the people, socio-economic and politico-cultural values (which in Pakistan are enshrined in
the Objectives Resolution) so as to extend the benefit of the same to the maximum possible.
This is also called judicial activism or judicial creativity. In other words, the role of the Courts
is to expand the scope of such a provisi on and not to extenuate the same. The constructi on
placed by me on Article 17 of the Constituti on hereinabove in para. 16, seems to be in
consonance with the above rules of construction

58. I may observe that the judgment of this Court in the case of Messrs Haider Automobile
Ltd. (supra) on all fours is applicable to the present case. In the above case somewhat
identical arguments were advanced, namely, that since late Constituti on of 1962 contained
exhaustive provisions about the appointment and other terms and conditions of service of
the Judges of the superior Courts, the President was not competent to prescribe
disqualificati on to practice after retirement through an Ordinance (i.e. Ordinance of 1964),
but the same was repelled. It was held that since under item 38 of the 1962 Constituti on the
Central Legislature was competent to legislate on the subject, the President could issue
above Ordinance as the Legislature was not in session. It was highlighted that Legislative List
should not be construed in any narrow or pedantic sense. Each general word used therein
should be interpreted in a manner, which may cover all ancillary or subsidiary matters, which
can fairly and reasonably be said to be comprehended within it.

It may further be observed that a Constituti on of a Country is a living tree capable of

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

59. I am inclined to hold that clause (1) of Article 63 of the Constituti on does not, in any
way, place embargo on the powers of the Parliament to provide a law to eliminate the evil of
defection. If we were to accept the contenti on of Mr. Syed Sharifuddin Pirzada, learned
counsel for the respondents, we will have to read therein additional words after the word "if',
"and only if. At this juncture it may be pertinent to point out that under clause (1) of Article
51 of the Constitution, the members of the National,

????????????????? Assembly and under clause (1) of Article 106, the members of the
Provincial' Assemblies Ore to be elected by direct and free votes in accordance with law. In
other words, the above provisions in the Constituti on envisage enactment of electi on laws
by the Parliament. Similarly, sub-clause (p) of clause (1) of Article 63 contemplates
enactment of laws for providing disqualificati on in additi on to the grounds mentioned in
sub-clauses (a) to (o) in above clause (1) of Article 63. The above provisions are to be read in
conjuncti on with item 41 of the Fourth Schedule to the Constitution. I am unable to
subscribe to the submissi on of Mr. Syed Sharifuddin Pirzada that the above sub-clause (p)
relates to pre-electi on period and is independent from other sub-clauses of clause (1) of the
above Article. The opening part of clause (1) of Article 63 reproduced hereinabove will not
only cover sub-clauses (a) to (o) but will also encompass and govern above sub- clasue (p).
There seems to be no conflict T between above sub-clause (p) and the other sub-clauses of
the above clause (1) of Article 63 of the Constitution. The reference by Mr. Syed Sharifuddin
pirzada to the treatise on the Constitutional Limitations by Thomas M. Cooly. Eighth Editi on
at p.129 and Treatise on Constitutional Law, Substance and Procedure, Second Editi on by
Ronald D. Rotunda and John E. Nowak at p.660, in which the Authors have observed that up
on the adopti on of an amendment to the Constitution, the amendment becomes a part
there of as much so as it had been originally incorporated in the Constituti on and that in
case of conflict, efforts should be made to construe in a manner which may harmonize the
amendment with the other provisions of the Constituti on but if it cannot be done, the
amendment being the last expression, shall prevail, is not apt to the case in hand as there is
no conflict between sub-clause (p) and other sub-clauses of clause (1) of Article 63 of the
Constituti on as held by me above.,

60. I may now revert to the last limb of Mr. Syed Sharifuddin Pirzada's arguments that above
secti on 8-B of the Act is violative of Article 66 of the Constitution, which contains the
privileges of members and clause (1) there of provides that "subject to the Constituti on and
to the rules of procedure of Majlis-e-Shoora (Parliament), there shall be freedom of speech
in Majlis-e?Shoora (Parliament) and no member shall be liable to any proceedings in any
Court in respect of anything said or any vote given by him in Majlis-e-Shoora (Parliament),
and no pers on shall be so liable in respect of the publicati on by or under the authority of
Majlis-e-Shoora (Parliament) of any report, paper, votes or proceedings". According to Mr.
Sharifuddin Pirzada, secti on 8-B of the Act in fact violates the above right of freedom of
speech and vote contained in above clause (1). of Article 66 of the Constitution. He has
invited our attenti on to the case of Pakistan v. Ahmed Saeed Kirmani and others PLD 1958
SC (Pak.) 397, the case of Lt.-Col. Farzand Ali and others v. Province of West Pakistan through
the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC
98, the case of Islamic Republic of Pakistan v. Mian Mahmood Ali Kasuri and another 1976
SCMR 273 and the case of Karachi Bar Associati on v. Abdul Hafeez Pirzada and another P L
D 1988 Kar. 309 besides referring to the two cases of Indian Supreme Court,namely, the case
of M.S.M. Sharma v. Sri Krishna Sinha and others A I R 1959 SC 395 and in Special Reference
No.l of 1964 AIR 1965 SC 745.

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

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

In the above first Indian Supreme Court case inter alia it has been held that Article 194 which
relates to the privileges of the members of the ?Parliament is not subject to Article 19 of the
Indian Constitution, which pertains to the freedom of speech subject to reasonable
restrictions.

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

61. The above cases inter alia indicate that generally the Courts in exercise of their general
jurisdicti on will be reluctant to interfere with the working of the Assemblies. However, the
above reports do not touch up on the controversy in issue, namely, whether a law which is
intended. to eliminate evil of horse-trading (defection) and to maintain the required
discipline among the parties' members in the Assemblies, which is sine qua n on for
functioning of the Parliamentary democracy and to ensure stability of the democratic,

institutions, can be said to be violative of Article 66(1) of the Constitution. I have already
dealt with the questi on of defecti on and as to the import of secti on 8-B of the Act
hereinabove inter alia in paras.49 to 52.

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

62. 1 may now refer to the submissions of Mr. Iftikhar Gillani noticed hereinabove in para.
16. His submissi on that since floor crossing is an evil which is condemned by all the political
parties and sections of people and as secti on 8-B of the Act was enacted to eliminate the
above evil according to the will of the people, this Court would not declare it ultra vires on
any technical ground but would press into service the doctrine of deferment. Reliance was
placed by him on the two judgments of the Supreme Court of United States, namely, in the
case of Nicholas De B. Katzenbach v. John P. Morgan and Christine Morgan 384 US 641 and
in the case of Mac Q. Williams on v. Lee Optical of Oklahoma 483 USC 348.

63. on the other hand, Mr. Syed Sharifuddin Pirzada has invited our attenti on to the treatise
"Constitutional Interpretation", Fourth Editi on by Craig R. Ducat and Harold W. Chase, and
the book under the capti on

"The Supreme Court, How it was, how it is" by William H. Rehnquist (former Chief Justice of
the United States).

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

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

66. It is not necessary to examine the above aspect in detail as the above issue stands
settled by this Court inter alia in the above judgments.

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

These are my reasons pursuant to a short order, dated 16-1-1994 of the minority view.

(Sd.)
AJMAL MIAN, J,

I agree. My note of concurrence is also appended.

(Sd.)
SALEEM AKHTAR, J.

I agree with my brother HJ(2).

(Sd.)

FAZAL ILAHI; J.

SALEEM AKHTAR, .J.--1 have had the, advantage of reading the exhaustive and
accomplished opini on of my learned brother Ajmal Mian, J. iii -which all the facts,
contentions and references made during the hearing have been discussed in a
comprehensive manner. I agree with it and append herewith my opini on on some of the
questions involved in these appeals.

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

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

????????????????? 4. The questi on to be considered now would be whether the Supreme

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

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

5. It is thus obvious that even this judgment does not support the contenti on of the
respondents with regard to the jurisdicti on of the Tribunal to consider the vires of the Act
under which it is empowered to exercise jurisdiction.
6. Mr. Khalid Anwar, learned counsel for the appellant has taken the stand that a Tribunal of
limited jurisdicti on empowered under an Act to hear any case has no jurisdicti on to
consider the vires of such Act. Reference has been made to Mr. Fazlul Quader Chowdhry and
others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486). In this case amendments were
made in the Constituti on by Order HIV of 1962 particularly in Articles 103 and 1114 of the
Constituti on of 1'962. Article 1113 prescribed qualifications and disqualificati on for electi
on as, a member of the National Assembly. Article 104 provided that any member of an
Assembly shall cease to be a member of the Assembly on the day on which he entered up
on office as Minister. By President's Order No.XXXIV of 1962 this disqualificati on incurred by
the Ministers was removed and amendments in the relevant provisions of the Constituti on
were made. The constitutionality of these amendments were challenged by the respondent,
a member of the Assembly, before the High Court of East Pakistan praying' for a writ in the
nature of quo warranto under Article 98(Z)(b) of the Constituti on of 1962. The questi on
arose whether the validity of such amendment in the Constituti on could be decided by the
Chief Electi on Commissioner or the High Court. Cornelius, CJ. observed :--

???????????? ?To decide up on the questi on of? constitutional validity, in relati on to

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

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

7. In this regard reference was also made by the respondents to:--

(1)?????????? The Manager,. Khewra Salt Mines, Khewra v. The Mines Employees
????????????????? and Labour Union, Khewra and another (PLD 1976 Lahore 601),

(2)???????????????????????????? Akhtar Ali Pervez v. Altafur Rehman (PLD 1963 (W.P) Lahore
390),

(3)?????????? Messrs Shafiq Hanif (Pert.) Ltd., Karachi v. Bank of Credit and Commerce
International (Overseas) Limited, Karachi (PLD 1993 Karachi 107), and

(4)?????????? J.K. Manufactures Ltd. v. The Sales Tax Officer, Sector II, Kanpur
????????????????? and others (AIR 197?1 Allahabad 362 j,

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

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

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

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

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

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

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

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

"The Court will be in a position, if the procedure is flexible, to extend the benefits of socio-
economic change through this medium of interpretati on to all sections of the citizens.

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

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

"The interpretati on of Constituti on attracts most of the principles employed in interpreting

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

16. In Khalid Malik v. Federati on of Pakistan (PLD 1991 Karachi 1) the same principle was
reiterated in the following- manner : --

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

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

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

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

"Secti on 8(2) of the Political Parties Act, 1962 contains a salutary principle which is
recognised as a well-established conventi on wherever a democratic system of Government
is followed and where representatives of the people are elected as candidates of a political
party. The need for making a legislative provisi on here may have been felt in view of the
experience of the past when frequent crossing of the floor of the House by the members
took place which not only violated a well-established democratic conventi on but also led to
the unstability of the Government. The law now provides that such a conduct will lead to the
disqualificati on of the member."

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

21. It has been contended that secti on 8B is ultra vires of Article 63 of the Constitution.
Article 63 enumerates disqualificati on for Members of the Majlis-e-Shoora and also the
Provincial Assemblies -by virtue , of Article 127.

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

"Article 63(11:

(1)?????????? A pers on shall be disqualified from being elected or chosen as, and
????????????????? from being, a member of the Majlis-e-Shoora (Parliament), if--

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

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

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

In Corpus Juris Secundum, Volume 42, the word it has been defined as follows:--

"as a noun, an "if" is a condition, .a supposition, as in the expressions, "There are too many
ifs in the way" and "to stand up on ifs and contingencies."

In its more frequent use as a conjuncti on introducing a conditional sentence or clause, it

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

In particular connections, the term has been held an equivalent of "at" and "in case" or "in
case of
Stround's Judicial Dictionary, Fourth Edition, page 1277--

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

In State of Tamil Nadu v. Kodai Kanal Motor Uni on (Pvt.) Limited . (PTCL 1987 (Foreign
Cases) 375) while interpreting secti on 10-A of the Central Sales Act, 1956 it was observed
that the use of the expressi on "if" simpliciter was meant to indicate a condition.

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

"Elections to the office of President to the National Assembly, the Senate and the Provincial
Assemblies; Chief Electi on Commissioner and Electi on Commissions."

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

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

(SD.)
SALEEM AKHTAR, J

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

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

"Issue notice to the Attorney-General for Pakistan and the Advocates- General of the
Provinces for appearance in the Court on 23-10-1994 to assist the Court on the questi on
whether secti on 8-B of the Political Parties Act, 1962 is ultra vires to any provisi on of the
Constitution."

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

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

(2)?????????? If a person, having been elected to the National or a Provincial Assembly as a

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

At the time the Act was promulgated, the Constituti on of 1962 was enforced in its original
form. Chapter-1 in Part 11 of the Constituti on of 1962 with the heading "Fundamental
Rights" containing Articles 6 to 19 was subsequently substituted on 16-1-1964 through
Constituti on (First Amendment) Act, 1963, (Act No. I of 1964). Simultaneously, Schedule IV
was also added in the Constituti on of 1962 which besides giving protecti on to the Act,
provided immunity to various Presidential Orders, Martial Law Regulations, Central Acts,
Ordinances and West Pakistan Act specified in the schedule, from being challenged on the
ground of repugnancy to Article 6 of the Constituti on of 1962. Secti on 8(2) of the Act thus
held the field until it was omitted with retrospective from 8-5-1974 by Act XXI of 1975
passed on 18-2-1975. In the meantime, Constituti on of 1973 was adopted. While the
Constitutional Bill was being piloted in the Assembly, the then Law Minister; Mr.,Abdul
Hafeez Pirzada in his speech delivered in the Assembly on that occasion, stressed the need
for discouraging the tendency of opportunism; adventurism and defiance by the members
of political parties of the whip of the party whip. These observations of the then Law
Minister found expressi on in the proviso to sub-clause (5) of Article 96 of the Constituti on
which reads as follows:--

"Article 96:

(1)???????????????????????????? A resoluti on for a vote of no-confidence may be passed

against the? Prime Minister by the National Assembly.
(2)?????????? A resoluti on referred to in clause (1) shall not be moved in the National
Assembly unless, by the same resolution, the name o1 another member of the Assembly is
put forward as the successor.

(3)?????????? A resoluti on referred to in clause (1) shall not be moved in the National
Assembly while the National Assembly is considering demands for grants submitted to it in
the Annual Budget Statement.

(4)?????????? A resoluti on referred to in clause (1) shall not be voted up on before the
expirati on of three days, or later than seven days, from the day on which such resoluti on is
moved in the National Assembly.

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

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

(6) :If a resoluti on referred to in clause (1) is not passed, another such resoluti on shall not
be moved until a period of six months has elapsed."

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

"8-B.Disqualificuti on on ground of defection, etc.--(1) If a member of a House,--

(a)?????????? having been elected as such as a candidate or nominee of a political party, or

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

(2)?????????? If any questi on arises whether a member of a House has become disqualified
under subsecti on (1) from being a member, the questi on shall, on a reference by the
Leader of the Parliamentary Party concerned, be determined by the Electi on Commission.

(3)?????????? An appeal against a decisi on of the Electi on Commissi on under subsecti on

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

Explanation.--In this section, "House" means a House of the Majlis Shoora (Parlaiment) and
includes a Provincial Assembly."

By Ordinance X of 1990 promulgated on 22-10-1990 the following Explanati on was added

to secti on 8-B of the Act:--

"Explanation.,--For the purpose of this section. (a) a member of a House shall be deemed to
defect a political party if he--

(i)???????????? votes or abstains from voting in such House contrary to any directi on issued
by the disciplinary committee of the Parliamentary Party to which he belongs or, if there be
no disciplinary committee of such Parliamentary Party, by the Parliamentary Party itself
without obtaining in either case prior permissi on of the disciplinary committee or, as the
case may be, of the Parliamentary Party, and such voting or abstensi on has not been
condoned by the Parliamentary Party within thirty days from the date of such voting or
abstension;

(ii)?????????? accepts any office or under the Government. of a political party other than the
one to which he belongs without obtaining the prior permissi on in writing of the
Parliamentary Party to which he belongs;

(b)???????????????????????????? "House" means a House of the Majlis-e-Shoora (Parliament)

and includes a Provincial Assembly;

(c)?????????? "disciplinary committee of a Parliamentary Party" means a committee of not

less than five members who for the time being are elected by the Parliamentary Party
concerned;"

Ordinance VIII of 1991 promulgated on 1-2-1991 repealed Ordinance X of 1990 and re-
enacted the above Explanati on added to secti on 8-B ibid on 22-10-1990. Ordinance VIII of
1991 was, however, not placed before the Assembly as required by Article 89 of Constituti
on of 1973 with the result it lapsed after 4 months of the date of its promulgati on and
consequently stood repealed under the Constitution. With the repeal of Ordinance VIII of
1991, the Explanati on added to secti on 8-B of the Act also stood repealed from the statute
book. Before the general elections of 1993, Ordinance XXX of 1993 was promulgated by the
Care-taker Government on 7-10-1993, which made the following amendments in secti on 8-
B of the Act:--

"2.???????????????????????????? Amendment of secti on 8-B. Act III of 1962.--In the Political

Parties
????????????????? Act, 1962 (III of 1962), in secti on 8-B,--

(a)?????????? in subsecti on (2), for the words "Electi on Commission" the words "majority of
the members of such. Parliamentary Party of the House" shall be inserted; and

(b)???????????????????????????? for subsecti on (3), the following shall be substituted,

namely:

"The member against whom decisi on has been made by the Parliamentary Party under
subsecti on (2) may, within ten days, prefer an appeal before the Speaker of the National
Assembly or Provincial Assembly or the Chairman of the Senate, as the case may be, who
shall decide the appeal within thirty days."

Ordinance XXX of 1993 was also not placed before the Assembly as required by Article 89 of
the Connstituti on of 1973 and accordingly, it stood repealed on the expiry of 4 months
from the date of its promulgation, and consequently the amendments introduced by it in
the Act were also repealed.

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

"264. Where a law is repealed, or is deemed to have been repealed by, under, or by virtue of
the Constitution, the repeal shall not, except as otherwise provided in the Constitution,---

(a)?????????? revive anything not in force or existing at the bane at which the repeal takes
effect;

(b)?????????? affect the previous operati on of the law or anything duly done or suffered
under the law;

(c)?????????? affect arty right, privilege, obligati on or liability acquired, accrued or incurred
under the law;

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

arid any such investigation, legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture

????????????????? .???????????????? or punishment may be imposed, as if the law had not

been ` repealed."

The language of Article 264 of the Constitution, of 1973 embodies a rule of interpretati on
similar to secti on 6 of the General Clauses Act. However, the provisions of General Clauses
Act cannot be called in aid while 1 interpreting the provisions of the Constituti on in the
absence of a provisi on in t the Constituti on of 1973 extending the applicati on of the
provisions of General Clauses Act to the Constitution. However, before considering the
effect of

repeal provided in Article 264 of the Constituti on of 1973, it will be appropriate to

determine the scope and nature of the power of President conferred under Article 89 of the
Constituti on of 1973 to promulgate Ordinance. Article 89 of the Constituti on of 1973 reads
as follows:---

"89.--(1) The President may, except when the National Assembly is in session, if satisfied that
circumstances exist which render it necessary to take immediate action, make and
promulgate an Ordinance as the circumstances may require.

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

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

(i)???????????? before the National Assembly if? contains provisions dealing with all or any of
the matters specified in clause (2) of Article 73, and shall stand repealed at the expirati on of
four months from its promulgati on or, if before the expirati on of that period a resoluti on
disapproving it, passed by the Assembly, up on the passing of that resolution;

(ii)???????????????????????????? before both Houses if it does not contain provisions dealing

with any? of the matters referred to in sub-paragraph (i), and shall stand ?????????????????
repealed at the expirati on of four months from its promulgati on or, if before the expirati on
of that period a resoluti on disapproving it is passed by either House, up on the passing of
that resolution; and,

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

(3)?????????? Without prejudice to the provisions of clause (2), an` Ordinance laid before the
National Assembly shall be deemed to be a Bill introduced in the National Assembly.''.
Mr. Khalid Anwar, the learned counsel for the appellant contended that the power of the
President to promulga , Ordinance under Article 89 of the Constituti on of 1973 is in the
nature of an administrative fiat as this power exercised by the President on the advice of the
Prime Minister. The learned counsel also contended that the power to promulgate an
Ordinance under Article 89 ibid is very limited and circumscribed by the conditions
mentioned in that Article. The power under Article 89 ibid, according to the learned counsel,
therefore, cannot be equated with the legislative power of the Parliament which is the
supreme body under the Constituti on of 1973 and is free to legislate without any such
constraint: Mr. Khalid Anwar further contended that an Ordinance promulgated under
Article 89 ibid, in any case, is a temp or an legislati on keeping in view the scope of the
power, and, therefore, if such an Ordinance is not approved by the Parliament as provided
under Article 89 ibid or it stands repealed, any change brought about through such
temporary???????????????? legislati on in a permanent legislati on loses its validity on such
repeal. The learned counsel for the appellant accordingly submitted that on repeal of
Ordinance XXX of 1993 the original provisions of secti on 8-B of Act stood revived and
therefore, the references filed by the appellant before the Electi on Commissi on were fully
competent in law, so also the above appeals.

Mr. Sharifuddin Pirzada, the learned counsel for the respondents though did not agree with
the contenti on of Mr. Khalid Anwar that the exercise of the power by the President under
Article 89 ibid is in the nature of executive power but very candidly and fairly stated that an
Ordinance promulgated under Article 89 of the Constituti on of 1973 by the President is
only a temporary legislati on and if it is not approved by the Parliament in accordance with
the provisions of Article 89 ibid, the change brought about by such an Ordinance in a
permanent statute loses its validity and the original provisions in the statute shall stand
revived on repeal of such Ordinance. Therefore, the first questi on which requires
determinati on in the case is, whether the power of President to promulgate an Ordinance
under Article 89 ibid is legislative in nature or it is only an executive power. A legislative act
is distinguished from an executive acti on with reference to the power of a 1 superior Court
to examine its validity in exercise of its power of judicial review. A legislative act cannot be
struck down by a Superior Court on the grounds of mala fides, or lack of bona fides or non-
applicati on of mind in exercise of such I ' power. However, an executive acti on is not
immune from being challenged on these grounds under Article 199 of the Constituti on of
1973. An Ordinance promulgated by the President has the same force and effect as an Act
of Parliament under Article 89(2) ibid, though the exercise of power by the President is
circumscribed by the conditions mentioned in that Article. In the' case of Fauji Foundati on
and another v. Shamimur Rehman (PLD 1983 SC 457) the power of President to issue
Ordinance was challenged on the ground of being mala fide. This Court after an exhaustive
discussi on repelled the contenti on on the ground that a legislative act cannot be
challenged on the ground of mala fides or lack of bona fides. Article- 123 of the Indian
Constituti on which is similar to Article 89 of the Constituti on of 1973 and confers power on
the Indian President to promulgate Ordinance while the Assembly is not in sessi on or it
stands dissolved, is described in the marginal note of the Article as "the legislative power of
the President". In the case of K. Nagaraj and others v. State of Andhra Pradesh and another
(AIR 1985 SC 551), the Indian Supreme Court while interpreting the scope of the power of
the Governor, which is similar to the power of President to promulgate an Ordinance when
the Provincial Assembly is not in session, held as follows:--

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

In the Constituti on of 1956 a similar provisi on authorising the president to promulgate

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

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

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

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

(2) An Ordinance promulgated under clause (i) shall be laid before the Provincial Assembly
anti shall cease to operate at the expirati on of six weeks from the next meeting of the
Assembly, or if a resoluti on disapproving it is passed y the Assembly, up on the passing of
that resolution!

It follows from the language of this Article that the legislative power of the Governor vas
limited by the following conditions:

(1) that the Provincial Assembly was not in session,

(2) that immediate acti on was necessary,

??? (3) that the Ordinance was liable to be laid before the Provincial Assembly when it met
next, and

(4) ????????? that it was to cease to operate:--

(a)???????????????????????????? if a resoluti on disapproving it was passed, and

(b)???????????????????????????? in an event at the expirati on one six weeks from the

meeting of the Assembly.

????????????????? The powers of legislature of the Governor, therefore, were of a transitory,

temporary and contingent nature. They are, no doubt, co?extensive with those of the
Provincial Assembly, .as argued by Mr.

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

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

"12.??????? It may be stated that an Ordinance is a temporary legislation. It cannot be given

permanency in the absence of any sound legal principle or backing of law. In this regard it
may be advantageous to quote the following passage from the judgment of this Court in
the case of Mahreen Zaibun Nisa v. Land Commissioner; Multan and others (PLD 1975 SC
397): .

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

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

We may also refer to the following observations of the Privy Council in the case of
Gooderham and Worts Ltd. v. Canadian Broadcasting Corporati on (AIR 1949 PC 90), on the
questi on of effect of expiry of a temporary amendment in an enactment:

"15.??????? This argument, at first sight attractive, as a point of pleading, is, in their
Lordships' opini on untenable on a sound appreciati on of the structure and terms of the Act
of 5th July, 1935, above-quoted. The first temporary amending Act of 1933 repealed certain
provisions of the Principal Act of 1932 and substituted other provisions in their place. The
operati on of. this amending Act was continued down to 30th June, 1935, by two further
Acts. Then by the Act of 5th July, 1935, its operati on was further extended to 31st March,
1936 but only till then. The sections of the three temporary legislations were repealed. The
result is that on 31st March, 1936, the temporary legislati on contained in the first Act of
1933 repealing provisions of the principal Act of 1932 and substituting other provisions
came to an end not by the repeal of the temporary legislati on but by the efflux of the
prescribed time. No questi on as to the revival' of the temporarily repealed provisions of the
Principal Act of 1932 by the repeal of the repealing legislati on arises. The repeal effected by
the temporary legislati on was only a temporary repeal. When by the fiat of Parliament the
temporary repeal expired the original legislati on automatically resumed its full force ? "

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

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

(1)?????????? That secti on 8-B is violative of the provisions of Article 2-A of? Constituti on of
1.973 inasmuch as the restraint put on an elected member to exercise his right of vote in
accordance with his conscious, is in conflict with the Injunctions of Islam;

(2)?????????? that secti on 8-B of the Act violates Articles 14 and 17 of the Constituti on as
the right to become a member of a political party includes a right to disassociate from that
party, which is infringed by the secti on 8-B of the Act:

?(3)????????? that secti on 8-B of the Act is also violative of Article 19 of the Constituti on of
1973 as it? to curtail the individual's right of freedom of speech and expressi on guaranteed
by the Constitution;

(4)?????????? that secti on 8-B is in conflict with Article 66(1) of the Constituti on of 1973
which provides immunity to the members of Parliament in respect of the proceedings of
Parliament and to the exercise of right of vote in the Parliament;

(5)?????????? that the disqualificati on prescribed under secti on 8-B of the Act is not
covered by any of the sub-clauses of Article 63 of the Constituti on of 1973; and

(6)?????????? that the designati on of Electi on Commissi on as the forum to decide the
questi on of disqualificati on of an elected member of Parliament under secti on 8-B of the
Act is in conflict with the forum prescribed under Article 63(2) of the Constituti on of 1973
and as such the forum prescribed under the Constituti on must prevail over the forum
designated-under a sub-Constitutional legislation.

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

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

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

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

Clause (2) of Article 63 of the Constituti on of 1973 provides that if a questi on arises
whether a member of Parliament has become disqualified from being the member of Majlis-
e-Shoora, it shall be referred to the Chief Electi on Commissioner, by the Speaker of National
Assembly, if the disqualificati on relates to the member of National Assembly; and if such
member happened to be a member of the Senate, the reference to Chief Electi on
Commissioner is to be made by the Chairman of the Senate. The disqualifications of a
member of Majlis-e-Shoora are enumerated in sub-clauses (a) to (o) of clause (1) of Article
63 ibid. From the scheme of Article 63 ibid, it appears that it is designed to cater a situati on
when the questi on of disqualificati on of a member of Parliament is raised or arises during
the proceedings of Parliament inside the House. It is for this reas on that the right to make a
reference to Chief Electi on Commissioner is conferred expressly on the Speaker of National
Assembly or the Chairman of the Senate, as the case may be. Under this provisi on of the
Constitution, the Leader of the Parliamentary Party or any other pers on or authority has no
right to refer the matter of disqualificati on of the member of Parliament to Chief Electi on
Commissioner. As against this, secti on 8-B of the Act applies to a totally different and
distinct situati on namely, when a member of the Assembly, after having been elected as a
candidate of a political party on the ticket of that party, defects from his party.

Defecti on or withdrawal of a member of Assembly from his party after he is elected as a

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

Before taking up various grounds of attack advanced by the learned counsel for the
respondents in support of the arguments that the provisions of secti on 8-B of the Act are in
conflict with the provisions of the Constituti on of 1973, I think it necessary to dispose of
first the argument relating to the scope of the authority of Commissi on as the original
Tribunal and this Court is an appellate authority under the Act to determine the
Constitutional validity of secti on 8-B of the Act.

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

????????????????? The Advocate-Generals of Punjab, Sindh and N: W.F.P. supported the

contenti on of Mr. Sharifuddin Pirzada while the learned Advocate-General of Balochistan
took up the positi on that the Commissi on while acting under the provisions of the Act
could not examine the validity of secti on 8-B of the Act on the touchstone of the Constituti
on of 1973, being a Tribunal of limited jurisdiction. However, according to the learned
Advocate-General of Balochistan, this Court while hearing the statutory appeal acts as an
apex Court of the country and therefore, it is entitled to settle the questi on of vires of secti
on 8-B of the Act once for all, both in exercise of its Constitutional jurisdicti on as well as
being the apex Court of the country having jurisdicti on to do complete justice between the
parties.

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

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

"We are unable to see any such limitati on in the powers of the ,Tribunal while hearing the
appeals. on the other hand, the Tribunal under secti on 5 of the said Act is deemed to be
Civil Court for the purpose of deciding arty appeal before it with all the powers under the
Code of Civil Procedure.

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

In the case of Iqan Ahmed Khurram (supra), this Court approved the enunciati on of law in
the case of Hashim Khan (supra), as follows:--

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

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

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

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

"That I will preserve, protect and defend the Constituti on of Islamic Republic of Pakistan."

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

"Up to this stage, there can be doubt that the ultimate Court in this Country did consistently
maintain that it was not an ordinary Court of criminal appeal, and that since it was exercising
the jurisdicti on of the Privy Council, it would follow the same salutary principles as had been
laid down by the Privy Council in the matter of criminal appeals.

In 1956, when Pakistan shed its Domini on status and became a Republic, its Constituti on
set up a Supreme Court for the Country and by Article 159 gave it the following appellate
jurisdicti on in criminal matters:---

"An appeal shall lie to the Supreme Court from any judgment, final order or sentence of a
High Court in criminal proceedings, if the High Court--

(a)???????????????????????????? has on appeal reversed an order of acquittal of an accused

pers on and sentenced him. to death or to transportati on for life; or

(b)?????????? has withdrawn for trial before itself any case from any Court subordinate to its
authority, and has in such trial convicted the accused pers on and sentenced him as
aforesaid; or

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

(d)???????????????????????????? has imposed any punishment on any pers on for contempt

of the High Court:

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

In additi on to this, it also gave to the Supreme Court by Article 160 power to grant special
leave to appeal in other cases not covered by Article 159.

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

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

Having dealt with the arguments relating try the scope of the power of Commissi on to
decide the Constitutional validity of secti on 8-B of the Act, I now tale up the objections
raised by the learned counsel for the respondents in support of his contenti on that secti on
8-B of the Act is violative of various provisions of the Constituti on of 1973. The first objecti
on of the learned counsel for the respondents with regard to the Constitutional validity of
secti on 8-B of the Act is rested on its alleged conflict with the provisions of Articles hand 66
of the Constituti on of 1373. According to Mr. Pirzada, the learned counsel for the
respondents, the disqualifications of a member of Parliament are stated in sub-clauses (a) to
(o) of clause (1) of Article 63 of the Constituti on of 1 . These disqualifications relate to both
stages, namely, before a pers on is elected as a member of the Parliament d also continuing
as a member of the Parliament after his election, Mr. Pirzada contended that defecti on or
withdrawal from a political party by a member of the Parliament after his electi on on the
ticket of a polities party, is not covered under any of the sub-clause-s of clause (1) of Article
6'3 ibid. According to Mr, Pirzada, if the Legislature wanted to add defecti on or withdrawal
of a member of polities patty from its party after being elected on the ticket of that pate, as
a disqualificati on from continuing as the member of the Parliament, it could so? provide
only by making appropriate amendments in the Constitution. Such disqualification,
according to Mr. Pirzada, could not be prescribed through a sub-Constitutional legislation.
Regarding scope of sub-clause (p) of clause (1) of Article 63 ibid, Mr. Pirzada contended that
in this sub-clause 'the expressi on "from being elected or chosen as a member of the Majlis-
e-Shoora (Parliament)" has been deliberately omitted and therefore, a legislati on under this
sub-clause could only prescribe the disqualificati on of a member before his electi on as the
member of the Parliament. A legislati on under sub-clause (p) of Article 63(1) ibid, according
to Mr. Pirzada, which prescribed a disqualificati on of an elected member from being the
member of the Parliament was outside the scope of this clause and hence invalid. Mr.
Pirzada also contended that under clause (1) of Article 66 of the Constituti on of 1973, the
right of freedom of speech and vote in the Parliament by a member is fully protected and a
member cannot be held liable for such acti on in any proceeding in any Court. The learned
counsel, accordingly, contended that secti on 8-B of the Act, which encroaches up on the
right of a member of Parliament to freedom of vote in the Parliament is liable to be struck
down as unconstitutional.
Mr. Khalid Anwar, the learned counsel for the appellant on the other hand contended that
the disqualifications of a member of Parliament enumerated in sub-clauses (a) to (o) of
clause (1) of Article 63 ibid, are not exhaustive. Therefore, the Legislature both under sub-
clause (p) of clause (1) of Article 63 ibid as well as under its general power to legislate on the
subject of electi on to the office of President, National Assembly, Senate, Provincial
Assembly, Chief Electi on Commissioner and Electi on Commission, as provided in item 41 of
the Fourth Schedule to the Constituti on of 1973 could competently promulgate a law
prescribing further disqualifications of a member of the Parliament. It is, accordingly,
contended by Mr. Khalid Anwar that validity of secti on 8-B of the Act can be justified both
under sub-clause (p) of clause (1) of Article 63 ibid as well as under the general power of the
Legislature to enact laws in relati on to the matters covered by item 41 of the Federal
Legislative List in the Fourth Schedule of Constituti on of 1973.

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

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

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

"Adequate levels of living are essential for full enjoyment of individual's freedom and rights.
What is the use of freedom of speech to undernolish people or of the freedom of press to
an illiterate population. The rule of law must make for the establishing of social, economic
and cultural conditions which promote men to live in dignity and to live in dignity and to live
with aspirations."
The Court will be in a position, if the procedure is flexible, to extend the benefits of socio-
economic change through this medium of interpretati on to all sections of the citizens.

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

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

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

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

With respect to the Constituti on Act, 1867, it is quite likely that the interpretative intenti on
of the framers was something like the doctrine of progressive interpretation. They knew that
their handiwork would have to adapt to changes in society, and yet they did not seem to
contemplate amendment as a frequent method of adaptation, because they made no provisi
on for amendment of the Constitutional text, and amendment was in fact only possible by
the agency of the Imperial Parliament of, Great Britain. With respect to the Constituti on Act,
1982, the proceedings of the Special Joint Committee of the Senate and House of Commons
on the Constituti on of Canada indicate rather clearly that the civil servants who drafted the
text and the Ministers and members of Parliament who adapted it assumed that the Courts
would not be bound by the views of the framers, and would interpret the text in ways that
could not be predicted with certainty."
?????????????????

Brest in his book "Process of Constitutional Decisi on Making" quoted the following rule of
interpretati on of statutory and Constitutional provisions propounded by Justice Mekenna:--
-

"Legislation, both statutory and Constitutional, is enacted, it is true, from an experience of

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

"Applying the maxim, "expressio unis est exclusio alterius," the enumerati on of certain
specified things in a Constitutional provisi on will usually be construed to exclude all things
not thus enumerated. This is a rule to be used merely in ascertaining the true meaning, and
it is not a rigid rule of universal application, and will yield where an intenti on to the contrary
is indicated or expressed. The rule should never be applied to obscure the meaning or
thwart the purpose of- a Constitutional provision. The maxim should be applied with cauti
on td provisions of Constitutions relating to the legislative branch of the Government, since
it cannot be made to restrict the plenary power of the Legislature or to control an express
provisi on of the Constitution;"
In the case Abdul Aziz and others v. Province of West Pakistan PLD 1958 SC (Pak.) 499,
Cornelius, J. (as he then was) while stating a basic principle of interpretati on of
Constitutional provisions observed as follows:--

"The correct view is that a Constitutional provisi on must be ????????????????? interpreted, as

befits an organic instrument, in the widest possible sense. It is not permissible to place
narrow constructions up on provisions contained in a constitution, if the result be that
thereby the validity of a statute is prejudiced. In all circumstances, the full scope and extent
of the Constitutional provisi on is capable of a constructi on which is conformable to the
true meaning of the relevant Constitutional provision, then that constructi on should be
accepted. It is possible that the learned Judges meant to convey this impressi on by words
which they have employed, and we have only found it necessary to comment up on those
words to ensure that they should not be interpreted as allowing Courts to adapt the
Constituti on for the purpose of saving a statute when in fact the requirement is that all
statutes and more generally, all sub-Constitutional laws should conform to the Constitution."

In the case Government of Balochistan v. Azizufah Mem on PLD 1993 SC 341, the rule of
interpretati on of Constitutional provisions was stated as follows:---

"The interpretati on of Constituti on attracts most of the principles employed in interpreting

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

????????????????? In the case of Pakistan Industrial Development Corporati on v. Pakistan

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

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

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

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

"63.--(1) A pers on shall be disqualified from being elected or chosen as, and from being, a
member of the Majjis-e-Shoora (Parliament), if--

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

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

(c)???????????????????????????? he ceases to be a citizen of Pakistan, or acquires the

citizenship of a foreign State; or

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

than en office declared by law not to disqualify its holder; or

(e)?????????? he is in the service of any statutory body of any body which is owned or
controlled by the Government or in which the Government has a controlling share or
interest; or
(f)????????????????????????????? being a citizen of Pakistan by virtue of secti on 14B of the
Pakistan? Citizenship Act, 1951(11 of 1951), he is for the time being disqualified under any
law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative
Assembly of Azad Jammu and Kashmir; or
(g)???????????????????????????? he is propagating any opinion, or acting in any manner,
prejudicial to? the Ideology of Pakistan, or the sovereignty, integrity of security of ????????
Pakistan, or morality, or the maintenance of public order, or the integrity or independence of
the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed
Forces of Pakistan; or

he has been, on convicti on for any offence which in the opini on of the Chief Electi on
Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less
than two years, unless a period of five years has elapsed since his" release; or

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

he has been removed or compulsorily retired from the service of Pakistan on the ground of
misconduct unlesss a period of three years has elapsed since his removal or compulsory
retirement; or
(k)?????????? he has been in the service of Pakistan or of any statutory body or any body
which is owned or controlled by the Government or in which the Government has a
controlling share of interest, unless a period of two years has elapsed since he ceased to be
such service; or
(1)?????????? he fond guilty of a corrupt or illegal practice under any law for the time being ,
force, unless a period of five years has been elapsed from the date on which that order takes
effect; or

(m) he has been convicted under section's of the Political Parties Act, 1962 (111 of 1962),
unless a period of five years leas elapsed from the date of such conviction; or

(n)?????????? he, whether by himself or by any pers on or body of persons in trust for him or
for his benefit or on his account or as a member of a Hindu undivided family, has any share
or interest in a contract, not being a contract between a cooperative society and
Government, for the supply of goods to, or for the executi on of any contract or for the
performance of any service undertaken by, Government: Provided that the disqualificati on
under this paragraph shall not apply to a person---

(i)???????????? where the share or interest in the contract devolves east hind by inheritance
or successi on or as 'a legatee, executor or administrator, until the expirati on of ' months
after it has so devolved on him;

(ii)?????????? where the contract has been entered into by or on behalf of a public? company
as defined in the Companies Ordinance, 1984 (XLV11 of 1,84), of which he is a shareholder
but is not a director holding an office of profit under the company, or
(iii)????????? where he is a member of a Hindu undivided family and the contract has been
entered into by any other member of that family in the course of carrying on a separate
business in which he has no share or interest; or

Explanation.--- In this Article "goods" does not include agricultural produce or commodity
grown or produced by him or such goods as he is, under any directive of Government or any
law for the time being in force, under a duty or obligati on to supply--

(o)???????????????????????????? he holds any office of profit in the service of Pakistan other

than the following offices, namely:---

(i)?????????????????????????????? an office which is not whole time office remunerated either

by salary or by fee;

(ii)???????????????????????????? the office of Lumbardar, whether called by this or any other

title;

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

(iv)????????? any office the holder whereof, by virtue of such office, is liable to be called up
for. military training or military service under any law providing for the Constituti on or
raising of a Force; or

(p)?????????? he is for the time being disqualified from being elected or chosen as a member
of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time
being in force.
(2)?????????? if any questi on arises whether a member of the Majhs-e-Shoora (Parliament)
has become disqualified from being. a member, the Speaker or, as the case may be, the
Chairman shall refer the questi on to the Chief Electi on Commissioner and, if the Chief Electi
on Commissioner is of the opini on that the member has become disqualified, he shall cease
to be a member and his seat shall become vacant."

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

The next objecti on to the validity of secti on 8-B of the Act rests on its alleged conflict with
Article 66(1) of the Constituti on of 1973 which reads as under:--
"66.--(1) Subject to the Constituti on and to the rules of procedure of Majlis-e-Shoora
(Parliament), there shall be freedom of speech in Majlis-e-Shoora (Parliament) and no
member shall be liable to any proceedings in any Court in respect of anything said or any
vote given by him in Majlis-e-Shoora (Parliament), and no pers on shall be so liable in
respect of the publicati on by or under the authority of Majlis? e-Shoora (Parliament) of any
report, paper, votes or proceedings."

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

P P.P. Manifesto:

"POLITICAL PARTIES ACT

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

P M.L. (N) Manifesto: '

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

It is, therefore, quite clear that both the major political parties have similar view on the
questi on of controlling and discouraging the defecti on or floor ?crossing by the members
of the Assemblies.

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

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

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

Mr. Spencer Leigh Hughes agreed with him:

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

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

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

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

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

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

????????????????? The learned Advocates-General, Punjab, Sindh and N: W.F.P. also

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

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

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

"5.?????????? Political parties tend to provoke and inflame the people to an extent that the
country is dangerously polarized into fighting camps. What happened in the case of East
Pakistan in 1970-71, and in West Pakistan in 1977 is well known. During the electi on
campaigns so much bitterness was generated that it appeared as if people were not brother
Muslims in a Muslim State but combatants of two opposing armies thirsting for each others
blood. This state of affairs is obviously not in consonance with the Islamic Injuncti on that
Muslims are one Ummah and constitute a wall of molten lead.

6?????????????? Now since there is general agreement about the objectives of an Islamic
state, as also the aims which the country and the nati on have to achieve, there is no
justificati on for the formati on of separate political parties to wrangle for political power. If
minor differences of opini on are to be considered a basis for organising parties the result is
bound to push the comm on aims and objects to the background, thus magnifying the
minor differences of opini on into national problems not amenable to easy solution. Another
outcome would be that major political, economic and foreign policy problems will be left to
the discreti on and decisi on of the bureaucracy thus leaving the elected representative
leadership powerless in national affairs and at the mercy of the bureaucrats. In the West
where secular systems of Government are in force and the underlying philosophy of
Government is that of the sovereignty of the people, there is room for differences regarding
the basic objectives of State Policy. Since new theories are propounded there from time to
time and new moral standards appear on the scene, it is natural for people to form
themselves into political groupings with different ideological stances and try to canvass
public support. If today the people there wish to impose prohibiti on or ban certain immoral
practices they can do so. However, if tomorrow some party stands in favour of? legalizing
the use of liquor, and if it succeeds in swinging the public opini on in the opposite direction,
all that had been prohibited can be legalized. Obviously an Islamic State cannot admit of
such basic ideological shifts."

The passage from Ansari Commissi on Report relied by the learned counsel for the
respondents, therefore, should not be read out of its context. Similarly, the extract from the
lecture of late Chief Justice Hamoodur Rahman, referred to by the learned counsel for the
respondents would show that the learned Chief Justice had in mind a Majlis-e-Shoora which
consisted of independent elected representatives who are not bound by the discipline of a
political party. In any case, the passage relied by the learned counsel for the respondents
from the speech of late Chief Justice can hardly be cited in justificati on of an act of defecti
on on Islamic principles where such an act is considered condemnable even on purely
secular standards. I have no doubt that an honest and principled dissent or disagreement on
an important issue by a member of political party can hardly be treated as an act of
defection. `Defection' in its concept and political parlance refers to an act of political
opportunism to obtain immoral gains and worldly advantages through exploitative
approach of one's representati on and political status. Such acts cannot be justified on any
known principle of Islamic polity. Islam ordains the believers to stand- by their promises and
fulfil their commitments. In Verse 91 of (Sura Nasil ) God has ordained:---

The translati on of the verse is as follows:---

"91. Fulfil the covenant of Allah when ye have covenanted, and break not your oaths after
the asseverati on of them, and after ye have made Allah surety over you. Lo: Allah knoweth
what ye do."

Similarly, in verse No. 77 of (Sura All e Imran ) God has ordained as follows:

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

In Verse No. 34 of ( Sura Bane Israel ), the directi on to faithfuls to fulfil their commitments is
as follows:---

" 71 and keep the covenant.

Lo: of the covenant it will be asked."

In verse No.27 of (Sura Infaal ), the commandment of God to discharge the trust is in these
words:---

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

Similarly in `Mishkhat-ul-Masabih, various sayings of Holy Prophet (peace be up on him),

have been quoted as under:---

, "Abu Hurairah reported that the Messenger of Allah said: The signs of a hypocrite are three.
When he talks, he speaks falsehood; and when he promises, he breaks, and who he is
entrusted, commits treachery, Agreed up on it. (Add Muslim added: Even though he keeps
fasts, prays and thinks that he is a Muslim.)

51. Abdullah-b-Aamr reported that the Messenger of Allah said: Whoso? has got four things
in him is a true hypocrite, and whoso has got a?? habit therefrom in him has got in him a
habit of hypocrisy till he gives it up; when he is trusted, he is unfaithful; and when he speaks,
he speaks falsehood; and when he makes promise, he proves ireachirous, and when he
quarrels, he commits sin--- Agreed.
???????????????????????????????????

152. Ibn Omar reported that the Messenger of Allah said: The parable of a ?????????????????
hypocrite is a goat roaming between two goats going once unto this and once unto that."

????????????????????????????????????????????????????? The narrati on of above Islamic

Principles make it clear that Islam ?????????? requires :he believers to carry out their
promises and commitments whenever made (except where such promises are made against
any express Injuncti on of? Islam), and refrain from committing the breach of any trust. A
pers on who seeks electi on as a candidate of a political party on its ticket, holds out to his
party and the electorate his abiding faith on the manifesto of this party. His defecti on from
the party after election, therefore, amounts to his refusal to carry out his promise and
commitment besides constituting a breach of the? trust reposed in him by his electorate.
Such an act of defecti on cannot be? justified on any known principle of morality much less
on any recognised Code of Islamic Polity. As pointed out in the celebrated passage in
Khawaja Ahmed? Tariq Rahim's case (supra), quoted earlier in this judgment, if a pers on
after his electi on as a candidate of a political party finds himself unable to subscribe to the
programme and policy of that party, the only honourable course for him is to renounce his
representative character, which reflects his abiding faith to the programme and policies of
that party, and seek a fresh mandate from hiss electorate on the basis of his changed
loyalties. This course will be fully in accord with the principles of Islamic polity. The manifest
intenti on behind secti on 8-B of the Act is to promote principled politics by rooting out
corrupt e practices embedded in our body politics. A legislati on based on such cherished?
objectives cannot be described as un-Islamic or unconstitutional under Article 2A of the
Constituti on of 1973. I, accordingly, hold that secti on 8-B of? the Act is neither in conflict
with Article 2-A of the Constituti on of 1973 nor it contravenes any express or known Injuncti
on of Islam. As a result of the above discussion, all the preliminary objections fail and case to
proceed on merit.

(Sd.)
SAIDUZZAMAN SIDDIQUI, J.

????????????????? FAZAL KARIM, J.---The references before the Electi on Commissi on out of
which these appeals have arisen, were ones under subsecti on (2) of secti on 8-B of the
Political Parties Act, 1962 (I shall, in this judgment, call it the Act of 1962). They were made
by the leader of the Parliamentary. Party, Pakistan Muslim League (N) (to be described as
PML(N), Sahibzada Syed Sabir Shah, appellant herein, against Mr. Akhtar. Hussain Shah and
Mr. Shad Muhammad Khan, respondents (they will be so described in this judgment), the
principal questi on being whether the respondents had committed such acts of defecti on or
withdrawal within the meaning of secti on 8-B, subsecti on (1) of the Act of 1962, as to
render them disqualified from being members of the N.-W.F.P. Provincial Assembly.

2. There was also a threshold questi on before the Electi on Commissi on (I say so because it
went to the jurisdicti on of the Electi on Commission); it was: "Is secti on 8-B of the Act of
1962 ultra vires the Constitution?", and it is with this threshold question, constitutionality of
subsections (2) and (3) of secti on 8-B in particular, that we are concerned here.

3. The Electi on Commissi on held unanimously that they were not competent to decide this
question. In the words of the learned Chief Electi on Commissioner, "the issues of vires and
jurisdicti on will be finally decided by the superior Courts" and to quote from the majority
judgment of the two learned Members "the ratio deducible from Humayun? Saifullah's case
(PLD 1990 SC 599) appears to be that proper forum for determining the vires of secti on 8-B
of the Act is either the High Court (per majority view) or the Supreme Court (per minority
view)" and it "can, therefore, be impliedly held that Electi on Commissi on would have no
jurisdicti on to determine the vires of secti on 8-B of the Act. Even otherwise, a forum which
is the creati on of a special statute would not perhaps be competent to go into the vires
thereof'.,

4. If I may say so with respect, no such principle of law was laid down in Humayun Saifullah
Khan case. There, references had been filed before the Electi on Commissi on under secti on
8-B of the Act of 1962 by Mr. Humayun Saifullah as leader of the Parliamentary Party. Before
those references could be decided, a petiti on under Article 199 of the Constituti on was
filed in the Peshawar High Court contending that secti on 8-B of the Act of 1962 was ultra
vires the Constituti on as it violated the provisions contained in Articles 8, 17, 19, 25, 65 and
66 of the Constituti on and also because "in enacting it the basic structure of the Constituti
on was violated". The High Court dismissed the writ petition, among others, on the ground
that the referring authority, Mr. Humayun Saifullah Khan, had "ceased to be the leader of the
Parliamentary Party after the electi on of Arbab Muhammad Jehangir Khan as leader of the
combined oppositi on party in the Assembly", .and that the references filed by him "had
become invalid and incompetent in law". Mr. Humayun Saifullah Khan appealed, and this
Court by its judgment reported as Humayun Saifullah Khan v. Federati on of Pakistan (PLD
1990 SC 599) set aside the judgment of? the Peshawar High Court and remanded "the
matter to the High Court for disposing of the Constituti on petiti on in accordance with law".
My learned brother Ajmal Mian, J. would not have, but for the majority judgment, remanded
the matter "to the High Court for adjudicati on up on the vires of secti on 8-B of the Act", his
view being that the questi on "whether secti on 8-B of the Act violates any fundamental
right is a questi on of great public importance which affects the body politic of this country"
and that "the popularly elected members of the assemblies and the public-at-large should
know, whether secti on 8-B of the Act is a legally enforceable provisi on or not as it provides
penalty against defecti on by an elected member of an assembly". The questi on could in his
view be treated as one under clause (3) of Article 184 of the Constitution.

5. It is noteworthy that none of the learned counsel appearing before us relied up on

Humayun Saifullah Khan's case for the propositi on that the Electi on Commissi on was not
competent to decide the vires of secti on 8-B of the Act of. 1962. Nor do I think that the
learned Members were right in thinking that "forum which is creati on of a special statute
would not perhaps be competent to go into the vires thereof'. This view proceeds, if I may
again say with respect, on the wrong assumpti on that the Electi on Commissi on is the
creati on of the Act of 1962. The truth is that both the Chief Electi on Commissioner and the
Electi on Commissi on are the creati on of the Constitution. I think, therefore, that even if
there be a rule of law that a Court or Tribunal cannot go into the validity of the enactment
which created it that rule had hardly any applicati on here.

6. Learned counsel for the respondents Mr. Sharifuddin Pirzada, Advocate argued that this
Court is not an ordinary Court of appeal and the rule that it cannot claim higher jurisdicti on
than the original Tribunal does not, therefore, apply to it. He cited, among others, Noora's
case (PLD 1973 SC 469) and Waris Meah's case (PLD 1957 SC 157). He also invoked to his aid
the provisions of Articles 2A, 184(3) and 187(1) of the Constituti on and invited us to
determine the Constitutional validity of secti on 8-B, subsections (1) and (2) and -to hold
that these subsections conflict with Article 63, clause (2) of the Constitution, and are,
therefore, invalid.

7. He cited I.A. Sherwani's case (1991 SCMR 1041), Iqan Ahmad Khurram's case (PLD 1980 SC
153) and Muhammad Hashim Khan case (PLD 1976 Quetta 59) as instances of cases in which
the power to decide the vires of law was exercised by Tribunals of limited jurisdiction.
Learned counsel for the appellant, Mr. Khalid Anwar, Advocate, cited, among others, Fazlur
Quader Chowdhry's case (PLD 1963 SC 486) and Akhtar Ali Parvez v. Altafur Rehman (PLD
1963, (WP) Lahore 390) for the contrary view.

8. I do not think it necessary to call in aid the provisions of Article 2A or 184(3) of the
Constituti on to decide the Constitutionality of secti on 8-B of the Act of 1962. And I must
confess that I am not sure that Article 187, clause (1), of the Constituti on was, in view of the
legislative history of that clause to which our attenti on was invited by learned counsel for
the appellant and in particular the expressi on "subject to clause (2) of Article 175", with
which it begins, intended to include the power which we have been invited t0 exercise in this
case. In my opinion, the decisi on of the questi on can be safely based up on a rule of
statutory constructi on vouched by respectable authority, namely, that included in. the
questions of law that a tribunal or authority is empowered to C decide, is the objecti on
based on vires, particularly if the power giving C enactment contains machinery which
enables a party effectively to raise in the Courts the questi on whether a particular provisi on
of law is or is not ultra ~ vires. I shall be content to refer to two cases namely Raleigh
Investment Co. v. C The Governor-General-in-Council (AIR (34) 1947 PC 78 PLD 1947 PC 19)
decided by the Privy Council, and the second, Chief Adjudicati on Officer v. Foster ((1993) 1
All E.R. 705) recently decided by the Court of Appeal and the House of Lords of England,
which are directly in point. Neither of them was cited at the Bar of this Court. (In saying so, I
am not, I hope, being unfair to the research and industry of the learned counsel). I had
called the attenti on of learned counsel for the parties to Foster case and as the principle of
law enunciated therein is identical to the one enunciated in the earlier Raleigh Investment
Co. case, I think that I am entitled to .take into considerati on the ratio decidendi of that case
also.
9. In the Raleigh Investment Co.'s case, their Lordships of the Privy Council were hearing an
appeal from a judgment of the Federal Court of India reversing a decree passed by a Special
Bench of the High Court of Calcutta in its ordinary original civil jurisdiction. The suit in which
that decree was passed was brought by the Raleigh Investment Co. against the respondent,
the Governor-General-in-Council, claiming repayment of Rs.4,35,295.5, part of a large sum
paid by it under an assessment to income-tax made up on it. The basis of this claim was that
in the computati on of assessable income, effect had been given to a provisi on of the
Income-tax Acts which in the submissi on of the appellant was ultra vires the Indian
Legislature because that provisi on authorised the assessment and charging to tax of a non-
resident in respect of dividends declared or paid outside British India, but not brought into
British India. The Income-tax Officer had assessed the Raleigh Investment Co. as a non-
resident, and that company gave notice of appeal to the Appellate Assistant Commissioner
of Income-tax, but later informed him that it did not propose to proceed with the appeal.
The Appellate Assistant Commissioner confirmed the assessment, expressing the opini on
"that the constitutional questions raised by the appellant could not be entertained in an
appeal under the Income-tax Act, by the provisi on of which the Income-tax authorities were
bound".

10. One of the grounds of defence was that secti on 67 of-the Income-tax Act, 1922, barred
the suit. That secti on ran: "No suit shall be brought in any Civil Court to set aside or modify
any assessment made under this Act ... ...". The argument for, the Raleigh Investment Co. was
that "an assessment was not an assessment `made under the Act' if the assessment gave
effect to a provisi on which was ultra vires the Indian legislature. In law such a provision,
being a nullity, was non-existent". Dealing with that argument, their Lordships observed that
"there is a substantial questi on whether or not that provisi on is ultra vires the Indian
legislature", and held: '

"In construing the secti on it is pertinent to their. Lordships' opinion, to ascertain whether
the Act contains machinery which enables an assessee effectively to raise in the Courts the
questi on whether a particular provisi on of the Income-tax Act bearing on the assessment
made is or is not ultra vires. The presence of such machinery, though by no means
conclusive, marches with a constructi on of the secti on ???????? which denies an alternative
jurisdicti on to enquire into the same subject-matter. The absence of such machinery would
greatly assist the appellant on the .questi on of constructi on and, indeed, it may be added
that, if there were no such machinery and if the secti on affected to preclude the High Court
in its ordinary civil jurisdicti on from considering a point of ultra vires, there would be a
serious questi on whether the opening part of the section, so far as it debarred the questi on
of ultra vires being debated, fell within the competence of the legislature", and concluded:
???????

????????????????????????????????????????????????????? " ????????????? it is clear that the

Income-tax Act, 1922 as it stood at the relevant date, did give the assessee the right
effectively to raise in relati on to an ?? assessment made up on him the questi on whether or
not a provisi on in the Act was ultra vires. Under secti on 30, an assessee whose only ground
of complaint was that effect had been given in the assessment to a provisi on which he
contended was ultra vires might appeal against the assessment. If he were dissatisfied with
the decisi on on ?????????? appeal the assessee could ask for a case to be stated on any
questi on of law for the opini on of the High Court and, if his request were refused, he? light
apply to the High Court for an order requiring a case to be stated and to be referred to the
High Court ???????????????? It cannot be doubted that included in the questions of law
which might be raised by a case stated is any questi on as to the validity of any taxing
provisi on in the Income-tax Act to which effect has been given in the assessment under
review? Effective and appropriate machinery is therefore, provided by the Act itself for the
review on grounds of law of any assessment. It is in that setting that secti on 67 has to be
construed:'

????????????????? 11. In the Foster case, a Social Security Commissioner had allowed an
appeal by Miss Foster against the decisi on of a Social Security Appeal Tribunal which had
affirmed the decisi on of the Adjudicati on Officer that Miss Foster was hot entitled to a
severe disability premium. In reaching that decision, the Commissioner held that two sub-
paragraphs of the Income Support (General) Regulations, 1987, which were made by the
Secretary of State for Social Services under secti on 22(4) of the Social Security Act, 1986
were ultra vires and that the remainders of the Regulations were severable. Against the
decisi on of the Commissioner, an appeal was preferred before the High Court and there
one of the questions was:

"Had the Commissioner jurisdicti on to decide up on the vires of the Regulations", and "if
not, has this Court power to do so?". In deciding those questions, the High Court noticed
the distincti on between an appellate and a judicial review jurisdiction; in its view the judicial
review jurisdicti on was strictly confined to the High Court and held that it was not to be
expected "that a judicial review jurisdicti on would be conferred up on those exercising a
`closed statutory appeals jurisdicti on in the absence of clear words" and that the
Commissioner's decisi on "was out with his jurisdiction". The learned Judges Lord Donalds
on M.R. and Nolan L.JJ. were however of the view that though they could not decide the
questi on of the vires of the regulations as an appellate Court, yet they could do so in the
exercise of their judicial review jurisdiction. Accordingly they proceeded to determine the
questi on of the vires of the regulations. (See (1992) 1 QB 31).

????????????????? 12. When this case reached the House of Lords, there the questi on was
again debated whether the Commissioner in his capacity of appellate authority had the
jurisdicti on to determine the challenge to the vires of the? regulations. In the leading
speech, Lord Bridge referred to the relevant section, which conferred the right of appeal
against a decisi on on the ground that the decisi on was "erroneous in point of law". and
held that the "Commissioner has no power and no authority to decide anything but the
issue which arises in the case before him, typically, as in this case, whether in particular
circumstances a claimant is or is not entitled to the benefit claimed. If the success of the
claim depends, as here, on whether a particular provisi on in a regulati on is both ultra vires
and severable, the Commissioner's decisi on of that questi on is merely incidental to his
decisi on as to whether the claim should be upheld or rejected". Lord Bridge gave two
reasons for this view; first, "it avoids a cumbrous duplicity of proceedings"; and secondly "it
is, in my view, highly desirable that when the Court of Appeal, or indeed your Lordships
House, are called up on to determine an issue of the kind in questi on they should have the
benefit of the views up on it of one or more of the Commissioners, who have great expertise
in this somewhat esoteric area of the law.

13. The doctrine that there is distincti on between judicial review and appellate jurisdicti on
in the sense that questions of vires belong to the former? and not to the latter jurisdicti on is
a judicially evolved doctrine, and like all p judicially evolved doctrines, it is, and ought to be,
flexible and capable of new p application. The distincti on should not be regarded as
something "engraved on d tablets of stone". Foster case serves as an example in which that
doctrine was? effectively exploded.

14. It is important to note that the Raleigh Investment Co.'s case represents the class of case
in which the questi on is of the vires of primary legislation, that is an Act of the Legislature
and the Foster case is a case of the vires of subordinate legislation. The principle of law laid
down in Raleigh Investment Co.'s case seems to provide a complete answer to the contenti
on that a questi on of vires cannot be determined otherwise than in the exercise of judicial
review jurisdiction. As regards the Foster case, it was said that it is indistinguishable from
cases such as IA. Sharwani's case (1991 SCMR 1041), and Iqan Ahmad Khurram's case (PLD
1980 SC 153) in which also the questi on related to the vires of subordinate legislation. This
approach, in my view, misses the essence or what, in legal jargon, is called the ratio
decidendi of the case, namely that included in the power to decide a questi on of law is the .
power to decide the vires of legislation. The whole theory of ultra vires is that E the act in
question, be it a legislative act or an administrative act, is beyond the E legal power of the
pers on or authority doing it. In the off-quoted passage in i; Cooley's Constitutional
Limitations (cited by Cornelius, CJ. in Fazlul Quader IE Chowdhry's case PLD 1963 SC 486,
506), the rule has been stated as follows:

"For the Constituti on of the Sate is higher in authority than any law, direction, or order
made by anybody or any officer assuming to act under it, since such body or officer must
exercise a delegated authority, and one that must necessarily be subservient to the
instrument by which the delegati on is made. In any case of conflict the fundamental law
must govern, and the act in conflict with it must be treated as of no legal validity."

15. Thus, when the Parliament makes a sub-constitutional law, it does so in the exercise of its
delegated legislative power given by the Constitution, and in the case of subordinate
legislation, also, the maker exercises delegated, authority: In each case, there is a law higher
in authority, and the test to determine the vires is whether the subordinate law conflicts with
the higher ;?law. If it does, then it must be treated as of no legal validity. on principle,
therefore, there is no distincti on between the vires of an Act of Parliament and the vires of
subordinate legislation. Both are law, and if a subordinate legislati on is adjudged to be
good, it is to all intents as binding up on those to which it extends as an Act of Parliament
can be. It was held by the House of Lords in Wicks v. DPP (1947) 1 All E.R. 205): "There is, of
course, no doubt G that when a statute enables an authority to make regulations, a regulati
on G which is validly made under the Act, i.e. which is intra vires of the regulations G making
authority, should be regarded as though it were itself an enactment".

(Also see Tufazal Hussain v. Province of East Pakistan PLD 1963 SC 251, 260). Then, it must
be remembered that in England there is no written Constituti on and an Act of Parliament is
not subject to judicial control. But even there, the fact that a subordinate legislati on was
placed before the Parliament and approved has not prevented the Courts from determining
the vires of such legislation. In fact, Bryce in his "American Commonwealth" went to the
length of observing that it is the English doctrine of ultra vires in the sphere of ordinary law
that inspired those who invented the American doctrine of judicial review of legislative acts.

16. It is Co the credit of the fair-mindedness and candour of Mr. Khalid Anwar, Advocate,
that, speaking for himself, he was for enlarging the Court's jurisdicti on and wanted us to
determine the vires of secti on 8-B. This approach is in consonance with the maxim, up on
which, in comm on law, the Courts acted, namely, "boni judicis est? ampliare?
jurisdictionem". The true maxim of our law, says Broom in his famous book "Legal Maxims"
(Tenth Edition, at page 44), is to amplify its remedies and without usurping jurisdiction, to
apply its rules to the advancement of substantial justice.

17. It is true that in IA. Shervani's case and in Iqan Ahmad's case, the questi on related to the
vires of rules, but in Muhammad Hashim Khan's case, the challenge was to the validity of the
Balochistan Service Tribunals Act, 1974, on the ground that it was in conflict with the
fundamental right enshrined in Article 25 of the Constitution. That case, therefore, directly
supports the view?point of Mr. Sharifuddin Pirzada, Advocate; and so does Waris Meah's
case in which this Court was exercising appellate jurisdicti on in a criminal matter when it
declared certain provisions of Foreign Exchange Regulati on Act, 1947 invalid on account of
their repugnancy to the right of equality before law clause in the 1956 Constitution. There
are observations in Mr. Fazlul Quader Chowdhry which present some difficulty. The questi on
there was as to the powers of the Chief Electi on Commissioner under Article 104(2) of the
1962 Constitution, which was the predecessor Article of Article 63(2) of the 1973
Constitution. Those observations in the judgment of Cornelius, CJ (at page 507 are: "He (the
Chief Electi on Commissioner) is a statutory authority and must observe and obey the law as
he finds it. It will not be for him in the discharge of his functions to questi on the vires of any
law. It is to my mind inconceivable that the intenti on of the Constituti on could ever be that
questions of this nature should go before the Chief Electi on Commissioner, and on the
other hand, every reas on of a general or a special nature combines to produce the convicti
on that this is strictly a questi on lying within the jurisdicti on of the superior Courts, at the
highest level of that jurisdiction"; and in the judgment of S.A. Rehman, J. (at page 517) are:
"The Chief Electi on Commissioner is not a Court and it would obviously be inapt for an issue
of Constitutional importance to be referred to him for decision. He might feel himself bound
by the letter of an enactment, without going into the questi on of its validity vis-a- vis the
Constitution". But these observations must be read in the context of the fourth clause of
Article 224 of the Constituti on of 1962, as amended by President's Order No. 34 of 1962,
which read: "The validity of any order made or purporting to have been made under the
Article shall not be called in question". However that may be, the important fact that
distinguishes that case from this case is that while under Article 213(2) of the Constituti on
of 1973, "no pers on shall be appointed to be Commissioner unless he is, or has been, a
Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified .... to
be appointed a Judge of the Supreme Court", and under Article 218(2) of that Constitution,
each of the two members of the Electi on Commissi on "shall be a Judge of a High Court..",
under Article 147 of the Constituti on of 1962, neither the Chief Electi on Commissioner nor
the Members of the Commissi on had to be Judges.

18. In Akhtar Ali's case (PLD 1963 Lahore 390), which was a case under the W.P. Rent Restricti
on Ordinance, 1959, Manzur Oadir, C.J. observed that an objecti on to the jurisdicti on of a
Tribunal could take one of the following general forms:--

(i)?????????????????????????????? that the law under which that Tribunal is created is

defective or invalid;

(ii)???????????????????????????? that the Tribunal is not constituted or appointed validly

under the law;

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

jurisdicti on of the Tribunal; and

(iv)??????????????????????????? that the subject-matter is outside the field in which the

particular Court is competent to act.

The learned Chief Justice held that "if a plea falling in the first or the second category is
raised before a Special Tribunal, the answer of the Special Tribunal, which i's a creature of the
special law and is constituted or appointed under that law, must be simply and shortly that
these matters are not for the Special Tribunal to decide. If a party needs a decisi on on those
points, it will have to apply to the Courts of general jurisdicti on in appropriate
proceedings... But "if the objections are raised which fall under the third or the fourth
general categories, the Rent Controller should immediately ascertain the grounds on which
those objections are based and he should proceed to settle those grounds and give his
decisions there and then".

19. It has been seen that the objections here were not objections falling under the first and
the second categories. They did not fall under category (iii) either. They plainly fall under
category (iv) for the view of the learned Chief Electi on Commissioner and the learned
Members was that the subject-matter of vires was beyond their jurisdiction. Therefore,
Akhtar Ali's case rather supports the view point that a questi on of vires, if raised before a

Special Tribunal such as the Electi on Commission, has to be decided by it.

20. For these reasons, Fazl-ul-Quader Chowdhry and Akhtar Ali's cases are, in my judgment,
distinguishable. But even if they are not, we should, I think, have a fresh look at the matter in
the light of the current of recent authority and redefine the jurisdictional limits of Tribunals,
like the Electi on Commission, with power to decide questions of law and hold that they are
competent to decide the questi on of vires when it is properly raised before them in
appropriate proceedings. I have already referred to Foster case. In the Anisminic Ltd. v.
Foreign Compensati on Commissi on (1969) 2 A.C. 147 which case has been described as a
landmark in the field of administrative law, the House of Lords of England were dealing with
the possible argument "whether this or that questi on of constructi on has been left to the
tribunal's field, or whether, because it pertains to the delimitati on of the tribunal's area by
the legislature, it is reserved for decisi on by the Courts", Lord Wilberforce said (at page 209):

"I think that we have reached a stage in our administrative law when we can view this questi
on quite objectively, without any necessary predispositi on towards one that questions of
law or questions of construction, are necessarily for the Courts." .

21. It is now well established that specialized Tribunals may, depending on their nature and
on the subject-matter, have the power to decide questions N of law... (Lord Wilberforce in
the Anisminic's case (1969) AC 147, 207). The H Electi on Commission, as a Tribunal, is
certainly within this category. It is a H body composed of Judges. The questi on remitted to
it, by subsecti on (2) of secti on 8-B of that Act for its determination, is "whether a member
has become disqualified under subsecti on (1)' from being a member." and this is
undoubtedly a judicial function. The extent of the interpretatory power conferred up on a
Tribunal may sometimes be difficult to ascertain. But here, there can be no doubt that the
interpretatory power of the Electi on Commissi on extended to the ascertainment of the
meanings of the enacted words `defects', `withdraws', `defection' and `withdrawal' which
have been left undefined, for without that ascertainment, the Commissi on could not I
determine whether the respondents 'had become disqualified. It is settled by I authority that
the meaning to be attributed to enacted words is a questi on of law. (Reg, v. Barnet (1983)
AC 309, 341). So, one of the questions of law, to be I determined by the Electi on Commissi
on under secti on 8-B of the Act of 1962 was to ascertain the meanings of these enacted
words and to apply them to the facts of the case. This sufficiently illustrates that the Electi on
Commissi on was a Tribunal of fact as well as of law. Then, against the decisi on of the
Commissi on determining .the questi on whether a member has become disqualified,
subsecti on (3) of secti on 8-B provides an appeal to this Court. Thus, "effective and
appropriate machinery" is provided by secti on 8-B itself for the decisi on of the questi on of
vires by this Court, not in the exercise of its judicial review jurisdiction, but in the exercise of
its appellate I jurisdiction.
~I

22. I am, therefore, led, and led ineluctably, to. the conclusi on that the 1 Electi on Commissi
on was competent to decide the questi on of the vires of I secti on 8-B of the Act of 1962,
and so is this Court, as an appellate Court.
23. I can now turn to the crucial questi on of the Constitutional validity of subsections (2)
and (3) of secti on 8-B of the Act of 1962. That questi on is indeed a questi on of great
public moment, and like any other such question, also of great delicacy. Chief Justice
Marshall, to whom more than any other one man the doctrine of Constitutional law owes its
origin, said in one of the later years of his life: "No questi on can be brought before a
Judicial Tribunal of greater delicacy than those which involve the constitutionality of
legislative acts". However, I must acknowledge that our task has been made less onerous by
the learned and powerful, albeit at times aggressive (or so they sounded to my
unaccustomed ears) arguments of Mr. Sharifuddin Pirzada, Advocate who appeared for the
respondents and by the conspicuously able arguments of Mr. Khalid Anwar, Advocate and
those of Mr. Iftikhar Gilani, Advocate, who appeared for the respondents.

24. The functi on of the Courts which embraces their general power to pass up on the
constitutionality of State statutes and of Acts of Congress in America has been concisely
termed `judicial review'. Like the American Constitution, our Constituti on too contains' no
express grant to Courts of this ' power of passing up on the constitutionality of Acts of
Parliament or Acts of the ' Provincial Assemblies. But "there is no positi on which depends
on clearer ' principles than that every act of delegated authority contrary to the tenor of the
commissi on under which it is exercised is void... To deny this would be to affirm that the
deputy is greater than his principal; that the servant is above his? master; that men acting by
virtue of powers do only what their provisions do not authorise, but what they forbid. (Mr.
Hamilt on in his Essay No. 78 under the heading "The Federalist". And eves since the
landmark case of Marbury v. Madis on (5 U.S. 1 Cranch 137 2 L.Ed. 60) in which Chief Justice
Marshall first asserted that power, and thereby, as Chief Justice Earl Warren has put it,
"rooted this fundamental principle in American Constitutional law as our original contributi
on to the science of law", it has "become part and parcel" of all Constitutional systems,
having written Constitutions, including those on the Westminster model, such as the
Constituti on of Pakistan, Australia, Jamaica, Sri Lanka, "read into the Constituti on so to
speak" so that "it is too late in our history to change that part of our system by judicial
interpretation. It would now require nothing short of a Constitutional amendment to do
away with the instituti on of judicial review". "American Interpretation" by Craig .R .Ducat
and Harold W. Chase at p.4).

25. Marbury's case established what Lord Bridge has described in a recent case, X Ltd. v.
Morgan Grampian (1991) 1 AC 1), as the sovereignty of Courts in interpreting and applying
the law as one of the twin foundations supporting the rule of law. That case must, therefore,
be the starting point of any discussi on on the constitutionality of a statute. The occasi on
for the asserti on of that power by Chief Justice Marshall "was a seeming collisi on between
the Constituti on and part of a statute, secti on 13 of the Judiciary Act of 1789", which, and
this gives it added significance so far as the present case is concerned, "enlarged the
Supreme Court's original jurisdicti on beyond what Article III of the Constituti on permitted".
Chief Justice Marshall posed the question: "whether an act; repugnant to the Constitution,
can become the law of the land.."? His answer was a resounding `no':
"The original and supreme will organizes the Government, and assigns to different
departments their respective powers. It may either stop here, or establish certain limits not
to be transcended by those departments. The Government of the United States is of the
latter description. The powers of the legislature are defined and limited: and that those limits
may not be mistaken or forgotten, the Constituti on is written. To what purpose are powers
limited, and to what purpose is that limitati on committed to writing, if these limits may, at
any time, be passed by those intended to be restrained? The distincti on between a
Government with limited and unlimited powers is abolished, if those limits do not confine
the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal
obligation. It is a propositi on too plain to be contested, that the Constituti on controls any
legislative act repugnant to it; or that the legislature may alter the Constituti on by an
ordinary act."

Chief Justice Marshall went on to hold:

"Certainly, all those who have framed written Constitutions contemplate them as forming
the fundamental and paramount law of the nation, and consequently, the theory of every
such Government must be, that an act of the legislature, repugnant to the Constitution, is
void. This theory is essentially attached to a written Constitution, and is, consequently; to be
considered, by this Court, as one of the fundamental principles of our society. It is not,
therefore, to be lost sight of, in the further considerati on of this subject.

If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its
invalidity, bind the Courts, and oblige them to give it effect? Or, in other words, though it be
not law, does it constitute a rule as operative as if it was a law?...

??????????? If two laws conflict with each other, the Courts must decide on the operati on of
each. So, if a law be in oppositi on to the Constitution; if both the law and the Constituti on
apply to a particular case, so that the Court must either decide that case, conformable to the
law, disregarding the Constitution; or conformable to the Constitution, disregarding the law;
the Court must determine which of these conflicting rules govern the case; this is of the very
essence of judicial duty. If then, the Courts are to regard the Constitution, and the Constituti
on is superior to any ordinary act of the legislature, the Constitution, and not such ordinary
act, must govern the case to which they both apply". "Those then, who controvert the
principle, that the Constituti on is to be considered, in Court, as a paramount law, are
reduced to the necessity of maintaining that Courts must close their eye on the Constitution,
and see only the law. This doctrine would subvert the very foundati on of all written
Constitutions. It would declare that an act which, according to the principles and theory of
our Government, is entirely void, is yet, in practice, completely obligatory. It would declare,
that if the legislature shall do what is expressly forbidden, such act, notwithstanding the
express prohibition, is in reality effectual. It would be giving to the legislature a practical and
real omnipotence, with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits and declaring that those limits may be passed at
pleasure. That it 'thus reduces to nothing what we have deemed the greatest improvement
on political institutions, a written Constitution, would, of itself, be sufficient, in America,
where written Constitutions have been viewed with so much reverence, for rejecting the
construction. But the peculiar expressions of the Constituti on of the United States furnish
additional arguments in favour of its rejection. The judicial power of the United States is
extended to all cases arising under the Constitution. Could it be the intenti on of those who
have this power, to say, that in using it, the Constituti on should not be looked into? That a
case arising under the Constituti on should be decided, without examining the instrument
under which it arises? This is too extravagant to be maintained."

26. The self-same idea, in Marbury, that "the Constituti on is either a superior paramount
law, unchangeable by ordinary means .... "has been put differently by the Privy Council in a
case from Jamaica which has a Constituti on on the Westminster model namely Hinds v. The.
Queen (1977) AC 195, 214):

" ....where, as in the instant case, a Constituti on on the Westminster model represents the
final step in the statement of full independence by the peoples of a former colony or
protectorate, the Constituti on provides machinery whereby any of its provisions, whether
relating to fundamental rights and freedoms or to the structure of Government and the
allocati on to its various organs of legislative, executive or judicial powers, may be altered by
those peoples through their elected representatives in the Parliament acting by speed
majorities, which is generally all that is required, though exceptionally as respects some
provisions the alterati on may be subject also to confirmati on by a direct vote of the
majority of the peoples themselves. The purpose served by this machinery for
`entrenchment' is to ensure that those provisions which were regarded as important
safeguards by the political parties in Jamaica, minority and majority alike, who took part in
the negotiations which led up to the Constitution, should not be altered without mature
considerati on by the Parliament and the consent of a larger proporti on of its member than
the bare majority required for ordinary laws."

27. The questi on of the constitutionality of a law, or to put it differently, whether a law is
intra vires or ultra vires does not depend up on considerati on K of jurisprudence or of
policy. It depends simply on examining the language of I K the constituti on and of
comparing the legislative authority conferred or the K Parliament with the provisions of the
sub-Constitutional law by which the K Parliament purports to exercise that authority. (See
Benori Lal Sharma's case (72 IA 57) relied up on in Waris Meah's case (PLD 1957 SC 157). The
essential point is that the Constituti on is the paramount law and the authority of the
Parliament is a derived authority, derived, that is, from the Constitution. The 1 law-making
functi on is merely this that the Constituti on is carried into effect through the
instrumentality of the legislature. So, in deciding whether any provisions of law passed by
the Parliament as an ordinary law are inconsistent K with the Constitution, the Courts are not
concerned with the propriety or K expediency of the law impugned. They are concerned
solely with "whether K those provisions, however reasonable and expedient, are of such a
character K that they conflict with an entrenched provisi on of the Constituti on and so can
be validly passed only after the Constituti on has been amended by the method laid down
by it for altering that entrenched provision". (Hinds v. The Queen (1977) AC 195, 214).
28. The questi on is, if I may venture to quote from "Through the Looking Glass, C.vi" as did
Lord Atkin in his famous and much-discussed dissenting '?judgment in Liversidge v. Anders
on (1942) AC 206): "which is to be master--- , that's all". The answer obviously is?I t is to be
the constitution. ,

29. The test of inconsistency which has been generally applied was laid down in Clyde
Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466). Isaaq, J.? ,said:

"If, however, a competent legislature expressly or impliedly evinces its M intenti on to cover
the whole field, that is a conclusive test of inconsistency where another legislature assumes
to enter to any extent up on the same field."

30. That test was analysed and fully stated by Dixon, J. in ex parte McLean (43 CLR 472, 483)
in a passage which is often cited (it was cited with approval by the Privy Council in O'
Sullivan's case (1957) AC 1):

"When the Parliament of the Commonwealth and the Parliament of a State each legislate up
on the same subject and prescribe what the rule of conduct shall be, they make laws which
are inconsistent, notwithstanding that the rule of conduct. is identical which each
prescribes... But the reas on is that, by prescribing the rule to be observed, the Federal
statute shows an intenti on to cover the subject matter and provide what the law up on it
shall be. If it appeared that the Federal law was intended to be supplementary to or
cumulative up on State law, then no inconsistency would be exhibited in imposing the same
duties or in inflicting different penalties. The inconsistency does not lie in the mere co-
existence of two laws which are susceptible? of simultaneous obedience. It depends up on
the intenti on of the paramount legislature to express by its enactment, completely
exhaustively, or exclusively what shall be the law governing the ?????????? particular conduct
or matter to which its attenti on is directed. When a Federal statute discloses such an
intention, it is inconsistent with it for the law of a State to govern the same conduct or
matter."

31. The stage is now set to examine the language of Article 63 of the Constitution, to
compare its clause (2) with the provisions of subsections (2) and (3) of secti on 8-B of the Act
of 1962 and to determine whether there is conflict between these two subsections and
Article 63, clause (2) of the Constitution.

32. The subject-matter of Article 63 of the Constituti on is the disqualificati on for

membership of Majlis-e-Shoora (Parliament). Read with Articles 113 and 127 of the
Constitution, this Article and Article 62 apply also to the membership of the Provincial
Assemblies. Article 63 consists of two clauses; clause (1) opens with the words "A pers on
shall be disqualified from being elected or chosen as, and from being, a member of the
Majlis-e-Shoora (Parliament) if..." This is followed by paragraphs (a) to (p) which contain the
grounds of disqualification. While the grounds in paragraphs (a) to (n) are specific grounds,
paragraph (p) says:
"(p)???????? he is for the time being disqualified from being elected or chosen as a member
of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time
being in force:"

Clause (2) of Article 63, up on which turns the validity of subsections (2) and (3) of the Act of
1962 reads:

"If any questi on arises whether a member of the Majlis-e-Shoora (Parliament) has become
disqualified from being a member, the Speaker or, as the case may be, the Chairman shall
refer the questi on to the Chief Electi on Commissioner and, if the Chief Electi on
Commissioner is of the opini on that the member has become disqualified, he shall cease to
be a member and his seat shall become vacant:"

Like any other law, the life of secti on 8-B of the Act of 1962 has, as Justice Homles has
wisely said in "The Comm on Law", not been logic; it has been experience. This is
demonstrably clear from its history so expansively traced by the learned Chief Justice in his
judgment,, which I respectfully adopt. It is unnecessary to rehearse it; however, it reminds
me of an observati on on slavery of an American writer which with necessary adaptation,
applies equally to the vice of defection. That observati on is:

"Jeffers on and Marshall, Madis on and C.C. Pinckney had their political differences ... .... but
all of them had two things 'in common. ^They all owned salves and they all hated slavery."

The subject-matter of secti on 8-B of the Act of 1962, as its title shows, also is disqualificati
on of members. It reads:--

"8-B. disqualificati on on ground of defecti on etc.--(1) If a member of House,--

(a)?????????? having been elected as such as a candidate or nominee of apolitical

????????????????? party, or

(b)?????????? having been elected as such otherwise than a candidate or nominee of a

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

33.?????????? There are two ways of approaching clause (2) of Act 1963 of the Constitution.
The first, which was contended for by learned counsel for the appellants, is that that clause is
attracted only when the disqualificati on is one of the disqualifications mentioned in
paragraphs (a) to (p) of clause (1) of Article 63. It was argued that the power conferred by
paragraph (p) of clause (1) of Article 63 is the power to provide for a disqualificati on "from
being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a? Provincial
Assembly" and as secti on 8-B of the Act of 1962 provides for the is qualificati on of a pers
on who is already a member, it is not a law under the paragraph of clause 111 of Article 63.
The argument also was that the Parliament's power to legislate is plenary and the Parliament
can legislate on the subject of disqualificati on independently of that Article. For that
purpose, reference was made to item 41 of the Federal Legislative List in the Fourth
Schedule to the Constituti on which reads: "Elections to the office of President, to the
National Assembly, the Senate and the Provincial Assemblies; Chief Electi on Commissioner
and Electi on Commissions". Learned counsel for the respondents, on the other hand,
wanted paragraph (p) of clause (1) of Article 63 to be read independently of the opening
words of that Article. In any case, his argument was that as both Article 63 and secti on 8-B
provide for the same subject-matter, -viz. disqualificati on of members, and clause (2) of that
Article is very widely worded, clause (2) would apply to `any question' of disqualificati on
whether it arises in respect of the disqualifications enumerated in clause (1) of Article 63 or
any other law.

34. There can be no doubt that there is an apparent conflict between clause (2) of Article 63
and subsections (2) and (3) of secti on 8-B of the Act of 1962; (1) clause (2) of Article 63 vests
the authority to refer the questi on whether a member has become disqualified in the
Speaker or as the case may be, in the Chairman. But subsecti on (2) of secti on 8-B vests that
authority in the leader of the Parliamentary Party concerned; (2) under clause (2) of Article
63, the questi on is to be referred to the Chief Electi on Commissioner, but under subsecti
on (2) of secti on 8-B, the questi on is to be referred to the Electi on Commission; and (3)
clause (2) of Article 63 does nit provide any appeal against the determinati on of the Chief
Electi on Commissioner, but, subsecti on (3) of secti on 8-B of the Act of 1962 provides an
appeal against the determinati on of the electi on Commissi on to this Court.

35. The Constitution, by its Articles '238 and 239, provides a special procedure for the
amendment of its provisions. Clause (2) of Article 63 is, therefore, an "entrenched" provision.
The question, therefore, is was the Parliament entitled by an ordinary law, namely secti on 8-
B of the Act of 1962, to strip the Chief Electi on Commissioner of its power to determine the
questi on whether a member has become disqualified, which questi on by Article 63, clause
(2), is expressly remitted to the jurisdicti on of the Chief Electi on Commissioner? Could the
Parliament render nugatory clause (2) of Article 63 by removing that power to the Electi on
Commissi on by an ordinary law without adopting the special procedure prescribed by
Articles 238 and 239 for the amendment of the Constitution? And if the answer be in the
negative, (and it cannot but be in the negative), then, can this be excused by the good
intenti on with which the legislative power might have been exceeded?

36. Paragraph (p) of clause (1) of Article 63 must be read in the context of the fascicular s of
all the clauses of Articles 62 and 63 and their paragraphs; in particular, it must be read with
the opening part of clause (1). If it is read divorced from the opening part of clause (1), it will
not make any sense at all; and in any case, to so read it would have the effect of rendering
the opening

????????????????? part redundant. Omitting from considerati on paragraphs (a) to (n), for
they are not relevant for the present purpose, clause (1) of Article 63 would read as follows:
"(1)???????? A pers on shall be disqualified from being elected or chosen as, and from being,
a member of the Majlis-e-Shoora (Parliament), if?(a) to (n) .....

(p)?????????? lie is for the time being disqualified pers on being elected or chosen as a
member of the Majlis-e-Shoora (Parliament) ft of a provincial Assembly under any law for
the time being in force."

37. Article 62 of the (.,constituti on is titled "Qualifications fur membership of Majlis-e-

Shoora (Parliament)';,-it' reads:

"A pers on shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora

(Parliament) unless--

(a)?????????? he is a citizen of Pakistan;

(b) he is, in the case of the National Assembly, not less than twenty-five yeas of age and is
enrolled as voter in any electoral roll for electi on W a Muslim, seat or a non-Muslim seat as
the case may be in that Assembly;

(c)?????????? he is, in the case of the Senate; not less than thirty years of age and is enrolled
as a voter in any area in a Province or, as the case may be, the Federal Capital or the
Federally Administered Tribal Areas, from where he seeks membership;

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

(e)?????????? he has adequate knowledge of Islamic teaching and practises obligatory duties
prescribed by Islam as well as abstains from major sins;

(f)??????????? he is sagacious, righteous and non-profligate and honest and Ameen;

(g)?????????? he has not been convicted for a crime involving moral turpitude or for giving
false evidence;

(h)?????????? he has not, after the establishment of Pakistan, worked against the? integrity of
the country or opposed the Ideology of Pakistan:

Provided that the disqualifications specified-in paragraphs (d) and (e) shall not apply to a
pers on who is a non-Muslim, but such a pers on shall have good moral reputation; and
(i)?????????????????????????????? he possesses such other qualifications as may be
prescribed by act of majlis-e-Shoora (Parliament).

38.?? It will be noticed that according to the title as also according to the opening part of
Article 62, paragraphs (a) to (h) all provide for qualifications; yet according to the proviso,
what paragraphs (d) and (e) contain are disqualifications. Learned counsel for the
respondents suggested that as the proviso treats paragraphs (d) and (e) only as containing
disqualifications, they alone should be so treated. I should think that the use of the word
`qualification' in the title, the words `shall not be qualified' in the opening part and the use
of the word `disqualification' in the proviso rather suggest that it is not the label of
`qualification' or `disqualification' that truly describes the substance of the provision. Articles
62 and 63, read together show, and in my opini on show clearly, that they run into each
other. For instance, it is a qualificati on to be a citizen of Pakistan. Obversely, it is a
disqualificati on not to be a citizen of Pakistan. This is brought into sharp relief by Articles 88
and 89 of the Constituti on of Sri Lanka (learned counsel for the respondents was kind
enough to supply its copy); Article 88 there of says:

"Every pers on shall, unless disqualified as hereinafter provided, be qualified to be an elector

at the electi on of the President and of the Members of Parliament or to vote at any
Referendum: Provided that no such pers on shall be entitled to vote unless his name is
entered in the appropriate register of electors";

and Article 89 provides:

"No pers on shall be qualified to be an elector at an electi on of the President, or of the

Members of Parliament or to vote at any Referendum, if he is subject to any of the following
disqualifications namely--

(a) if he is not a citizen of 'Sri Lanka; .."

39. To me, there appears no intractability in the language of paragraph (p) of clause (1) of
Article 63, read with the opening part thereof. Rather, it makes complete sense. It means
what it says. if a pers on is disqualified from being elected or chosen as a member "under
any law for the time being in force", then he shall be disqualified also from being a member.
The provisions of Article 62 are certainly `law within the meaning of paragraph (p) of clause
(1) of Article 63. Thus, a person, who is- not qualified under Article 62 or by any other valid
law that the Parliament may make, to be elected or chosen as a member, shall also be
disqualified from being , a member. Suppose A, a Muslim, had, according to paragraph (e) of
Article 62, adequate knowledge of Islamic teachings and practised obligatory duties
prescribed by Islam, but after his electi on renounced Islam. Suppose again,? that the
hypothetical was sagacious- honest arid Ameen at the time of election' but lost those
qualities afterwards. In both cases he would stand disqualified. To one of my queries Mr.
Khalid Anwar, Advocate, adopted the positi on that a pers on who is elected as a candidate
or nominee of one political party and then defects or withdraws from that party cannot be
dignified as an honest man or an Ameen, within the meaning of paragraph (f) of clause (1)
of Article 62 of the Constitution. In that case, Mr. Khaid Anwar fairly conceded, the
Parliament was, by enacting subsecti on (1) of secti on 8-B, of the Act of 1962, merely?
giving effect to paragraph of clause (1) of Article 62 read with paragraph (p) 'f clause (l) of
Article 63. And if subsecti on (1) of secti on 8-B of the Act of 1962 is to be confined to what
may compendiously be described as 'unprincipled defection', even then, it will e, on the
above reasoning, a lave under paragraph (p) f clause (1) of Article 63. The result should,
therefore, be that the disqualificati on dealt with by subsecti on (1) of secti on 8-B of the Act
of 1962 is also a disqualificati on to which clause (2) of Article 63 applies.
40?? But whatever secti on 8-B of the Act of 1962 is a lacy under paragraph (p) of clause (1.)
of Article 63 read with Article 62 of the Constituti on or whether it was made in the exercise
of what learned counsel for the appellants characterised as the general tar plenary legislative
power of the Parliament, the indisputable fact remains that it is a sub-constitutional law. The
subject-matter of both Article 63 of the Constituti on and secti on 8-13 of the Act of 1962 is
the same, namely, disqualificati on of members of parliament and provincial Assemblies, The
Constitution-makers,, in their wisdom, thought it roper to provide, by clause (2) of Article 63,
for the forum. That forum is the Chief Electi on Commissioner; it was to his exclusive
jurisdicti on that the terminati on of the questi on of disqualificati on was committed. clause
(2) is? very widely worded: "If any questi on arises whether a member.. has become
disqualifies, the Speaker.. shall refer the questi on to the Chief Election? Commissioner ....". 7
he words could not lie plainer and the intenti on manifested????????????? them is absolutely
clear that it is the Chief Electi on Commissioner, arid the Chief Electi on Commissar alone,
oho has the power to deal with any question' of disqualification. The power being in the
Chief Electi on Commissioner, there it must remain; it can neither be enlarged nor
diminished. I have said above that Marlury's case has an added
significance fir this case, and that lies in this that there the Judiciary Act of 1789 was
declared void because that Act had enlarged the original jurisdicti on of the Supreme Court
beyond .hat Article III of the Constituti on permitted,

41. The breach of the Constituti on being clear, can it lie excused on the P ground that
subsections (2) and (3) of secti on 8-B of the Act of 1962 provide. P arid leer; I quote from
the short order of m1? learned brothers in the minority,? comparatively superior forum lay
designating the Electi on Commissi on which consists of the Chief Electi on Commissioner as
its Chairman and two Judges of the High Courts". Obviously, it cannot be. The breach is and
I say so with great respect, nonetheless - a breach because the practical effect of subsecti on
(2) of secti on 8-B of the Act of 1962 is to deprive the Chief Electi on commissioner of his
power under Article 63, clause (2). That subsecti on (2) of? secti on 8-B of the Act of 1962
does not only diminish the power of the Chief p Electi on Commissioner, but it strips him of
that power completely is amply demonstrated by the decisi on of the Commissi on in this
very case. The two learned members, who decided against the appellant, were, on the view
of subsecti on (2) of secti on 8-B of the Act of 1962 that we take, not entitled, and had no
jurisdiction, to hear the references. Yet, they being in majority, the references were
dismissed, with the inevitable result that the learned Chief? Electi on Commissioner in whom
resides, by clause (2) of Article 63, the power' to decide, was rendered completely ineffective.
Thus, by this legislative device, if countenanced, clause (2) of Article 63, and for that matter,
all those provisions of the Constituti on which give the decision-making to one pers on can
be rendered nugatory by vesting that power, by an ordinary legislati on and without
amending the Constitution, in a plurality of persons. That would, in the familiar words of
Viscount Simonds in `Attorney-General for Australia v. The Queen (1957). AC 288), make a
mockery of the Constitution.
42.??? I would hold, therefore, that what subsecti on (2) of secti on 8-B of the Act of 1962
has done is to strip the Chief Electi on Commissioner to determine the questi on of
disqualification, which by clause (2) of Article 63 vests in him exclusively, and which he is not
required to share with anybody and that as both subsections (2) and (3) conflict, and are
inconsistent; with. clause (2) of Article 63 of the Constitution, they are void.

43. It must necessarily follow that the proceedings before the Electi on Commissi on and the
resulting decisi on dated 5-5-1994 were without jurisdicti on and that these appeals are also
not competent.

44. The holding that subsections (2) and (3) of the secti on 8-B of the Act of 1962 are void
being inconsistent with .clause (2) of Article 63 of the R Constituti on and these appeals are
.rot competent might appear to be R w contradictory in terms. It is however well settled that
an appeal lies r against an order without jurisdicti on in the same manner as an appeal R
against an order with jurisdicti on (See Mu hammad Ashfaq v.. The State -PLD 1973 SC 368,
378 and Ibrar Hasan v. Government of Pakistan PLD 1976 SC 1 315, 334. '

45. Further as was held in State v. Zia-ur-Rehman (PLD 1973 SC 49 at S 77),,"IF there is a
dispute on the point as to whether a Court has or has not S jurisdicti on over a certain
subject-matter, it can certainly hear and determine S that dispute, even if the result be that it
had to hold that it has no S jurisdiction".

????????????????? 46. As we hold that subsections (2) and (3) of secti on 8-B of the Act of
1962 are void and consequently the impugned order of the Electi on Commissi on is also
void and of no legal effect, the questi on of the Constitutional validity of subsecti on (1) of
secti on 8-B of the Act of 1962 has I become a hypothetical questi on and it is unnecessary
to decide it. Subsecti on (1) of secti on 8-B of the Act of 1962 is readily severable from
subsections (2) and (3) thereof; it is not a case where "what remains is so inextricably bound
up with the part declared invalid that what remains cannot independently survive..." (See
(1947) A.C. 503, 518). That also makes it unnecessary to examine the contentions of Mr.
Iftikhar Gillani, Advocate. which were mainly directed to the questi on that subsecti on (1) of
secti on 8-B of the Act. of 1962 is Constitutionally valid, namely (1) that the Courts must
defer to the views. of the Legislature, that is, in considering the vires of a statute. it must
start with a presumpti on of constitutionality; (2) that in view of the detailed character of the
provisions of Articles 62 and 63, they should be treated as belonging to the category of
statute law. For the latter contention, reliance was placed up on Abdul Aziz v. Province of
West Pakistan PLD 1958 SC (Pak.) 499 which case was concerned with Article 7 of the 1956
Constituti on (Article 10 of the present Constitution). It is sufficient to say that in the
precedent case itself (at p.509), Article 7 of the 1962 Constituti on was described as
containing ,provisions of "higher and all?embracing authority".

47?? . For these reasons, I respectfully agree with the learned Chief Justice, that these
appeals are not competent and should be dismissed.

(Sd.)
FAZAL KARIM, J

IRSHAD HASAN KHAN, J.--- I have the advantage of going through the leading judgment
proposed to be delivered by the Hon'ble Chief Justice and fully agree with his masterly
analysis of the facts and the lucid and able expositi on of the legal and Constitutional issues
involved therein. I would, however, venture to add a few words of my own.

2. It is not necessary to repeat in detail the previous history and facts of the case. Suffice it to
say that the case of the appellant is that Shad Muhammad Khan, Deputy Speaker of the
Provincial Assembly of N: W.F.P., and Akhtar Hussain Shah, a Minister in the Cabinet of the
appellant, were w on over by the Oppositi on and they were to support them in the No-
Confidence Moti on moved against the Chief Minister of N.-W.F.P. on 3-2-1994. Three
meetings of the Parliamentary Party of PML(N) were held on 5th, 17th and 22nd February,
1994, which were not attended to by the respondents. Their absence and conduct was
discussed in these meetings, in that, they were elected on the ticket of PML(N). Ultimately
they were disqualified on 22-2-1994 for having defected/withdrawn themselves from
PML(N). The Speaker of the N.-W.F.P. Assembly was intimated accordingly. on 23-2-1994,
when the No-Confidence Moti on was to be voted upon, the Speaker on a point of order by
one of the members of the PML(N) gave a ruling that the respondents were strangers in the
House. on the morning of 23-2-1994 and before considerati on of the No? Confidence
Motion, the respondents filed two separate writ petitions in the Peshawar High Court,
Peshawar, stating therein that due to the wrong policy of the appellant in running-the affairs
of the Provincial Government, the), had developed strong differences with him and in
consequence there of they had resigned, which was in the public knowledge through Press
coverage. A declarati on was prayed for that they were members of the N: W.F.P. Assembly
and the appellant had no right to deny them that status. A directi on was also sought for
against the appellant, the Speaker and Secretary of the Assembly from denying them the
status of members of the Assembly. The ruling of the Speaker dated 23-2-1994 disqualifying
their. from being members of the Assembly and adjourning the House to 31-3-1994, i.e.
beyond seven days, prescribed in Article 136 of the Constitution, was challenged through an
amendment of the writ petiti on on Z4-2-1934. The Governor, N.. W.F.F., in the meantime
directed the Secretary, N.-W.F.P. Assembly to convene a sessi on of the House to meet on
26-7-1994 at 10-00 a.m. under .Article 130(5) of the Constituti on and required the appellant
to show that they enjoyed the confidence of the majority. The High Court suspended the
ruling of the Speaker on 28-2-1994. This order was set aside by this Court vide order dated
6-3-1994 passed in C.Ps. Nos.96 and 9/ of 1994 and C.Ps. Nos.98 and 99 of 1994 and the
High Court was requested to dispose of the main petitions expeditiously. on remand, the
High Court disposed of the writ petitions with the consent of the parties vide order dated
21-3-1994 passed in Writ Petitions Nos. 230 and 231 of 1994 with the following
observation:--

" ... ... ... ...we shall dispose of the writ petitions that the decision/ruling of the respondents
about the disqualificati on of the writ petitioners have been withdrawn and the membership
of the writ petitioners stands restored. The matters/references filed before the Electi on
Commission/Chief Electi on commissioner or further formal or proper references if any made
immediately about the disqualificati on of the writ petitioner before:: the Electi on
Commission/Chief Electi on Commissioner shall be attended to by the parties on the basis of
day to day hearing and due to the urgency of the subject-matter we would request the
Honourable Chief Electi on Commissioner for the expeditious disposal of the?
differences/matters by day to day hearing...

3. The appellant filed two separate references under secti on 8-B of the Political Parties Act,
1962 (hereinafter referred to as the Act) against the respondents before the Electi on
Commissi on of Pakistan. The Speaker, N.-W.F.P. Assembly also filed two separate references
against the respondents before the Chief Electi on Commissioner. The respondents filed
their written statements in reply to these references, whereup on the Electi on Commissi on
framed the following issues:--

Whether secti on 8-B of the Political Parties Act, 1962 is ultra vires the Constituti on and
repugnant to the Injunctions of Islam?

(2)?????????? Whether the Reference is incompetent, misconceived, mala fide and? not
maintainable?

;3)?????????? What is the effect of the ,withdrawal of the decisi on by the ?????????????????
Parliamentary Party?

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

;5)?????????? Whether the respondent has defected from Pakistan Muslim League (Nawaz
Sharif Group), if so, what is its effect?

(6)?????????? Whether the respondent has become disqualified from being a Member of the
Provincial Assembly of N: W.F.P., if so, from what date?

Whether the El(:cti on Commissi on of Pakistan has jurisdicti on determine the vires of secti
on 8-B of the Political Parties Act, 1962?

After hearing both the parties, the Electi on Commissi on by a majority of two to one
dismissed the references vide order dated 5-5-1994. The references filed by the Speaker
were also dismissed by the Chief Electi on Commissioner through a separate order of even
date. As to the vires of secti on 8-B of the Act, it was unanimously held by the Electi on
Commissi on that it had no jurisdicti on to examine the same.

????????????????? 4.????????????? Feeling aggrieved, the appellant has filed two separate
appeals under secti on 8-B(3) of the Act.

5. At the commencement of hearing, Syed Sharifuddin Pirzada, learned counsel for the
respondents, prayed that notices be issued to the Attorney? General for Pakistan and the
Advocate-General, N: W.F.P. as contemplated under rule 1 of the Order XXVII-A, Code of
Civil Procedure, inasmuch as, substantial questions as to the interpretati on of provisions of
the Constituti on as well as vires of secti on 8-B of the Act were involved. The prayer was
vehemently opposed by Syed? Iftikhar Hussain Gillani, learned counsel for the appellant, on
the ground that this Court while hearing the appeal, as an appellate authority against the
impugned order of the Electi on Commission, cannot exercise powers and perform duties,
which were not conferred and imposed on the Electi on Commissi on under the Act in
respect of references filed before it. The learned counsel for the respondents argued that
this Court being the highest Court at the apex of the judicial system in the country and?
armed with all the powers without any limitations whatsoever, has plenary power to do
complete justice under Article 187 of the Constitution. This power is also available under
Article 185 and appropriate relief can be granted where vires of a statute are challenged.
After hearing the learned counsel for the parties at some length, this Court unanimously
passed the following order on 19-10-1994:--

"Issue notices to the Attorney-General for Pakistan and the Advocates-General of the
Provinces for appearance in the Court on 23-10-1994 to assist the Court on the questi on
whether secti on 8-B of the Political Parties Act, 1962, is ultra vires to any provisi on of the
Constitution."

Meanwhile, in order to save the time of the Court, learned counsel for the appellant was
directed to read the impugned judgment. Consequently, majority judgment was read on 19-
10-1994 whereafter the case was adjourned to the next working day, i.e. 23-10-1994 when
the minority judgment was gone through. on its conclusion, learned counsel for the
respondents was called up on to make submissions on the legal and Constitutional issues
involved in the appeals, Syed Sharifuddin Pirzada referred to a number of judgments to
contend that the Supreme Court has plenary power to do complete justice under Article 187
of the Constituti on and that this power is also available under Article 185. These authorities
are proposed to be discussed as under:--

In Benazir Bhutto v. Federati on of Pakistan PLD 1988 SC 416, a petiti on challenging the
vires of certain -provisions of the Act was directly entertained by this Court.

In Ch. Manzoor Ilahi v. Federati on of Pakistan PLD 1975 SC 85, this Court while deciding the
appeal resolved the Constitutional and legal issues and directed the High Court to pass the
order in the light of those observations amounting to resolving the dispute which the High
Court was itself enjoined to do while keeping in abeyance the petiti on filed in this Court.

In Delhi Judicial Service Associati on Tis Hazari Court v. State of Gujarat AIR 1991 SC 2176, it
was held that the appellate jurisdicti on exercised by the Supreme Court under secti on 19 of
the Contempt of Courts Act, 1971; does not divest it of its inherent power under Article 129
of the Indian Constituti on and that conferment of appellate power on the Court by a statute
does not and cannot affect the widest amplitude of inherent powers of the Supreme Court
under Article 129 of the Constitution.

In Waris Meah v. State PLD 1957 SC (Pak.) f57, this Court while seized of the matter as an
appellate authority under the Foreign Exchange Regulation, 1947, examined the
constitutionality of secti on 23-B of the Regulation.

????????????????? In Noora v. State PLD 1973 SC 469, it was laid down that Supreme Court
was the highest Court at the apex with all the powers of a Court of appeal without any
limitations.

In Ghulam Muhammad v. Irshad Ahmed PIJ 1982 SC 426, it was held:--

"The real controversy between the parties is on the third questi on which relates to the effect
of an interlocutory order in a pre-empti on matter passed by an appellate Court during the
pendency of (here- an applicati on for leave to) appeal. There is no denying the fact that this
Court passed the order dated 19th January, 1976 under jurisdicti on which is conferred by
the Constituti on and the power to be exercised in that behalf? not controlled by any
technical limitations of procedural nature: even if they are made applicable to other
appellate Courts to which the procedure prescribed in the Code of Civil Procedure is
applicable. Article 187 of the Constituti on relied up on from the respondents' side provides
that subject to clause (2) of Article 175, the Supreme Court shall have power to issue such
directions, orders or decrees as may be necessary for doing complete justice in any case or
matter pending before it, including an order for the purpose of securing the attendance of
any pers on or the discovery or producti on of any document. Order XLIX, rule 6 of the 1956
Supreme Court Rules provided that nothing in those Rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to make such orders an may be necessary
for the ends of justice or to prevent abuse of the process of the Court ... ... ... ..."

In the case of Hayat Bakhsh v. State PLD 1981 SC 265, it was held that power of Supreme
Court under Article 185(2) and (3) read with Article 187 extends to passing of all orders
necessary for doing complete justice or -otherwise ancillary or incidental to facilitate
exercise of such power. By virtue of this power the Court can issue directions, orders-or
decrees as may be necessary in this behalf, including an order for the purpose of securing
the attendance of any pers on or the discovery or producti on of any document and such
directi on and orders, by virtue of clause (2) of Article 187 are enforceable throughout
Pakistan. No doubt this power is subject to clause (2) of Article 175, but for the present
purposes it does not make any difference because the said clause provides that no Court
shall have any. jurisdicti on save as is or may be conferred on it by the Constituti on or by or
under any law. The power of the Supreme Court to do complete justice has been saved by
Article 187 of the Constitution, and extends to passing all orders which may be necessary for
doing complete justice to facilitate the exercise of that power. The power conferred under
Article 191 of the Constituti on on this Court to make rules regulating the practice and
procedure of the Court among others has to be co-related to Article 187 as well. Rule 6 of
Order LIX of the Supreme Court Rules clarifies that nothing in the Rules would be deemed to
limit or otherwise affect the inherent power of the Court to make such order as may be
necessary for the ends of justice or to prevent abuse of the process of the Court. This Rule
preserves the spirit of Article 187 and would apply to all situations requiring orders for
achieving the ends of justice or preventing the abuse of the process of the Court.
In Said Mian v. Mian Said Baghdad 1980 SCMR 420, the scope of Article 187 vis-a-vis the
powers of this Court under Article 185(3), which deals with the appeals to the Supreme
Court on grant of leave, was examined by the Full Court. It was observed that the Supreme
Court stands at the apex of the judicial hierarchy in country having all the powers of
appellate Court and can, therefore, clearly pass all ancillary and incidental orders which are
necessary for proper disposal and final adjudicati on of the-cases.

In Asmatullah v. Abdul Majid 1991 SCMR 1969, this Court came to the conclusi on that
relationship of landlord and tenant having been established between the parties in an
ejectment petiti on under the West Pakistan Urban Rent Restricti on Ordinance (Ordinance
VI of 1959), the. tenant's appeal was liable to be dismissed. However, in view of ex gratia
otter made by the tenant showing his readiness to deposit the rent due in Court within a
day possessi on of the property was' directed to be handed over to the appellant on deposit
of the amount in the Supreme Court in exercise of the power possessed by it under Article
187(1).

6. Mr. Khalid Anwar, learned counsel for the appellant took great pains in discussing the
nature of jurisdicti on of this Court with reference to

Articles 184, 185 and 187 of the Constitution. He argued that there were two types of
jurisdicti on under. the Constitution-- one was the appellate while the other was original. He
emphasized that the original jurisdicti on should be exercised very cautiously as there was
no higher forum available in the country to appeal against the decisi on of this Court. He
submitted that this Court's judgment has a seal of finality and the spirit of secti on 8-B of the
Act is that everybody should have at least one right of appeal. It was argued that if this
Court in the present case in the exercise of its original jurisdicti on or acting under its
jurisdicti on to do complete justice under Article 187, declares secti on 8-B of the Act ultra
vires, the appellant shall not have the right of appeal, therefore, this power should not .,
exercised. Dealing with the scope of Article 184(3) relating to original jurisdicti on of this
Court, it was argued that in order to invoke original jurisdiction, existence of two-fold
conditions is necessary; first, there must be a questi on of public importance and second,
such questi on must be with reference to enforcement of any of the fundamental rights. He
submitted that the ambit of Article 184(3) was discussed in Wasay Zafar v. Government of
Pakistan PLD 1994 SC 621 wherein at page 638 it was observed:--

"However, I may observe that the Supreme Court as the appellate ?? Court against the
judgments of the High Courts, irrespective of the fact that they may. have arisen out of the
exercise of Constitutional jurisdicti on by the High Court or any other jurisdicti on has been
conferred more power than the High Court as Article 187(1) of the Constitution, it has power
to issue such directions, orders, or decrees as may be necessary for doing complete justice
in any matter pending before it. In this regard, it may be pertinent to refer the following
observati on of Muhammad Haleem, CJ., in the case of Electi on Commissi on of Pakistan
through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396:
`The Supreme Court can in the exercise of its appellate power correct all legal errors or
defects or disabilities and its powers are wider in scope than the powers exercised by the
High Court under Article 199, to correct the defects of the kind mentioned above. To
emphasize the distinction, I would refer to the observations of Cornelius, CJ. in Jamal Shah's
case as under:

`Anything in the nature, of the exercise of full scale appellate jurisdicti on must be rigorously
avoided by the High Court, for that would be to override the requirement of the Constituti
on that the power under Article 98, should be exercised so as to give full effect to the terms
of such a provisi on as that contained in Article 171."

He also submitted that jurisdicti on under Article 184(3) is wider than Article 199, in that,
here procedural limits do not exist as contemplated by Article 199. The appellate jurisdicti
on of this Court under. Article 185 is defined. As to Article 187 it was argued that the title of
the Article is indicative of the fact that it relates to issue and executi on of processes of the
Supreme Court. The sheet-anchor is to do complete justice, but it does not confer
independent jurisdiction. It relates to directions, orders or decrees in matters pending before
it or directions etc. of administrative nature. He submitted that the case-law cited by the
respondents' side is distinguishable, in that, after the inserti on of the phrase `subject to
clause (2) of Article 175' in the Constituti on with effect from 13-9-1976 under the Constituti
on (5th Amendment) Act, 1976, the rule laid down in Ch. Manzoor Ellahi's case (supra)
whereby bail was granted to the petitioner therein notwithstanding the fact that under the
Defence of Pakistan Ordinance (XXX of 1971) jurisdicti on of the superior Courts was taken
away for granting bails, but this Court invoked the jurisdicti on under Article 187, is no
longer available. The submissi on was that under the unamended Article 187 this Court had
jurisdicti on to do complete justice in a case irrespective of the law, but under the amended
Article 187 orders, directions, etc., can be issued in a pending case only if jurisdicti on has
been specifically conferred, either under the law or the Constitution. Notwithstanding the
submissions as aforesaid, Mr. Khalid Anwar stated that he is for enlargement of .the scope of
jurisdicti on of the Supreme Court and his client prays that the provisi on of secti on 8-B of
the Act be declared intra vires.

7. As to the contenti on of, the Khalid Anwar that title of the Article indicates that it relates
to issue and executi on of processes of the Court etc., suffice it to say, the words of a title
may be referred to in construing the statute in order to discover the intenti on of the
Legislature where the meaning of any secti on or sections is doubtful. Here the words used
in Article 187 are clear U and unambiguous, therefore, in construing the same, aid to its title
cannot be invoked. Refer Constructi on of Statutes by Crawford at page 123, 1940 ' Endition,
wherein it has been observed that the title is no part of an Act. There is also no force in the
submissi on of Mr. Khalid Anwar that the word I `direction' used in Article 187(1) is of an
administrative nature and the words e `orders and decrees' are used in the context of issue
and executi on of the processes of the Court. Clearly, the directions, orders, or decrees used
in the Article are of very wide import and a restricted meaning cannot be given to W these
words. The word `direction' used in Article 187(1) includes directions V contemplated by
Article 199 of the-Constitution, in any case or matter pending V before the Supreme Court.

I am unable to agree with Mr. Khalid Anwar that the inserti on of phrase `subject to clause
(2) of Article 175' has in any manner affected the powers of this Court to issue such
directions, orders or decrees, as may be .necessary for doing complete justice, in any case or
matter pending before it. In the case of Ghulam Muhammad (supra), the scope of Article
187 was examined and it was held that the power conferred on this Court under Article 187
as amended by the Constituti on (5th Amendment) Act, 1976, is not controlled by any
technical limitations of procedural nature even if made W applicable to other appellate
Courts to which the procedure prescribed in the W Code of Civil Procedure is applicable. The
.authorities cited by Syed W Sharifuddin Pirzada cover post and pre-amendment period of
Article 187 and are applicable with all force to support the propositi on that this Curt can go
into the questi on of vires of secti on 8-B of the Act while acting as an appellate, Court.

8. At this stage, Syed Sharifuddin Pirzada raised a preliminary objection, that the appeals are
not competent as Secti on 8-B(3) of the Act, under which they have been filed, is ultra vires
the Constitution, in that, the forums provided under subsections.(2) and (3) are different
from the forum provided under Article 63(2) of the Constitution. The learned counsel for the
parties addressed arguments on this preliminary issue at some length. During the course of
arguments several questions arose, the first was whether under clause (2) of Article 63 of the
Constitution, exclusive jurisdicti on is vested in the Chief Electi on Commissioner for deciding
any questi on whether a member of Majlis-e-Shoora (Parliament) has become disqualified
from being a member? The second was whether the provisions of subsecti on (2) of secti on
8-B of the Ad, creating forum of Electi on Commissi on for determinati on of any questi on
whether a member of the Parliament or of a Provincial Assembly has become disqualified on
the ground of defecti on etc., under subsecti on (1) ibid, on. a reference being made to it by
the leader of the parliamentary party concerned, are ultra' vires Article 63(2)? The third was
whether the provisions of subsecti on (3) of secti on 8-B of the Act providing an appeal
against decisi on of the Electi on Commissi on under subsecti on (2) ibid within 30 days of
the decisi on to the Supreme Court are also ultra vires Article 63(2)?

The questi on whether secti on 8-B of the Act is ultra vires the Constituti on qua the forums
is a questi on of great public importance. The dictates of justice, therefore, demand to
decide this important question, in that, if the appeals are held to be incompetent for lack of
appellate authority, the other questions should, in the. first instance, be decided by the
appropriate forums. Mr. Khalid Anwar also suggested in the beginning of his arguments that
if this Court, in the exercise of its original jurisdicti on or acting under its jurisdicti on to do
complete justice under Article 187, declares secti on 8-B of the Act ultra vires, the affected
party shall not have the right of appeal, therefore, this power should not be exercised. To the
same effect was the argument raised by Mr. Iftikhar Hussain Gillani.

9. The first questi on as to the scope of jurisdicti on of the Chief Electi on Commissioner
depends entirely on the constructi on of Articles 62 and 63 of the Constitution, for, there can
be no doubt that the Constitution-makers had full power to confer exclusive jurisdicti on on
the Chief Electi on Commissioner to form an opini on on a reference made to him by the
Speaker of a House or the Chairman of the Senate, as the case may be, if any questi on
arises whether a member of a House has become disqualified from being a member and
where 5 he forms such an opinion, the member concerned ceases to be a .member and his
seat becomes vacant and what is to be determined is whether the intenti on to confer
exclusive jurisdicti on up on the Chief Electi on Commissioner, as claimed, is sufficiently
expressed in clause (2) of Article 63 of the Constituti on and whether there is any conflict of
forums provided under the Constituti on and the Act.

10. Article 173 of the 1962 Constituti on provided that no pers on shall hold himself out at
an electi on as a member of a political party unless permitted by Act of the Central
Legislature. The, Act came into force on 15-7-1962 when no Fundamental Rights were
guaranteed, which were included in the 1962 Constituti on for the first time through the First
Constituti on (Amendment) Act, 1963. Secti on 8 of the Act provided certain disqualifications
for being member of the National Assembly or a Provincial Assembly. Subsecti on (1) there
of provided that a pers on who has been an office-bearer of the central or provincial
committee of a political party dissolved under subsecti on (2) of secti on 6 of the Act; or who
has been convicted under secti on 7, was disqualified from being elected as a member of
the National Assembly or a Provincial Assembly for a period of five years from the date of
such dissoluti on or conviction, as the case may be. Subsecti on (2) provided that if a pers on
having been elected to the National Assembly or a Provincial Assembly as a candidate or
nominee of a political party, withdraws himself from it, he shall, from the date of such
withdrawal be disqualified from being a member of the Assembly for the unexpired period
of his term unless he has been re-elected at a bye-electi on caused by his disqualification.
The Act was protected to be assailed in a Court of law through Fourth Schedule to the 1962
Constitution. When the 1973 Constituti on was enforced, the Act was an existing law.
Subsecti on (2) of secti on 8 was omitted With effect from 8-5-1974 vide Ordinance XXI of
1972 dated 26-10-1974, which became Act XXI of 1975 promulgated on 18-2-1975. The
omissi on was deliberate and the Legislature was contended with the proviso contained in
Article 96 of the original Constitution. Martial Law was imposed in the country on 5-7-1977.
It was lifted on 24-12-1985, simultaneously Act XXII of 1985 was promulgated whereby secti
on 8-B was introduced in the Act. The disqualificati on on the ground of defecti on was
reinserted with enlargements. Provisions relating to registrati on of political parties were also
inserted vide secti on 3-B of the Act. Consequently, Muslim League was quickly registered as
a political party with the Electi on Commission. Malik Qasim challenged it before the Court.
Secti on 8-B for the first time provided a new forum for determinati on of the questi on of
disqualificati on on the ground of defection. Subsecti on (2) there of provided that if any
questi on arises whether a member of a House has become disqualified under subsecti on
(1) from being a member, the questi on shall, on a reference by the leader of the
Parliamentary Party, be determined by the Electi on Commission. Decisi on of this Electi on
Commissi on was subject to appeal before the Supreme Court under subsecti on (3) thereof.
This was followed by Ordinance X of 1990 promulgated on 22-10?1990 whereby Explanati
on to secti on 8-B was substituted. For the purpose of the section, a member of a House was
deemed to defect a political party if his case was covered by the conditions enumerated in
sub-clauses (i) and (ii) ibid. This was followed by Ordinance VIII of 1991 promulgated on 1-2-
1991 to the same effect. This also lapsed on expiry of four months period. Subsequently, the
National Assembly was dissolved in April, 1993. This Court restored it in the case of Mian
Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473. Secti on 8-B was further
amended by Ordinance XXX of 1993 on 7-10-1993 by the Care-taker Government,
substituting in subsecti on (2) forum of Electi on Commissi on by majority of members of the
Parliamentary Party of the House and in subsecti on (3) substituted the forum of appeal to
lie before the Speaker of the House. This Ordinance was also allowed to lapse on 6-2-1994.

????????????????? 11. The opening part of Article 62 reads as follows:--

"A pers on shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora

(Parliament) unless .... .. .. .:"

Para. (a) of Article 62 provides that a pers on shall be a citizen of Pakistan. Para.(b) provides
minimum age and enrolment as a voter in the case of National Assembly. Para. (c) lays down
age and enrolment as voter in the case of Senate, Para. (d) provides that a pers on seeking
electi on be of good character and is not commonly known as one who violates injunctions
of Islam. Para. (e) provides that he has adequate knowledge of Islamic teaching and
performs obligatory duties prescribed by Islam as well as abstains from major sins. Para. (f)
says he is sagacious, righteous and non-profligate and honest and Ameen. Para. (g) enjoins
that he has not been convicted for crime involving moral turpitude or for giving false
evidence. Para. (h) envisages that he has not, after the establishment of Pakistan, worked
against the integrity of the country or opposed the ideology of Pakistan. Proviso to
paragraph (h) provides that the disqualifications mentioned in paragraphs (d) and (e) shall
not apply to non-Muslims, but such a pers on shall have good moral reputation. Paragraph
(i) provides that he possesses such other qualifications as may be prescribed by Act of
Parliament.

' 2. it would thus has seen that qualifications as well as disqualifications y specified in Article
62 pertain to pre-electi on period. The disqualifications for y membership of Parliament
provided in Article 63 of the Constituti on apply to y pre- and post-electi on period, as it
opens with the following expression:--

"A pers on shall be disqualified from being elected or chosen as, and, from being a member
of the? Majlis-e-Shoora (Parliament), if ... ... ... ...

This is followed by enumerati on of various disqualifications contained in clauses (a) to (p). It

is a comm on ground between the parties that defecti on is not included in the list of
disqualifications mentioned in Article 62 and clauses (a) to (o) of Article 63. These
disqualifications, therefore, call for no comment in these proceedings. The parties are,
however, at variance on the interpretati on of paragraph (p) of clause (1) of Article 63.
According to learned counsel for the appellant, defecti on as a ground for disqualificati on is
covered by it. Same is the stand of the learned Advocate-General, Balochistan. Syed
Sharifuddin Pirzada, learned counsel for the respondents, learned Deputy Attorney-General,
and the Advocates-General of the Provinces of Punjab, N.-W.F.P. and Sindh are of the view
that paragraph (p) does not cover disqualificati on on the ground of defecti on and,
therefore, secti on 8-B of the Act is ultra vires the Constitution, although both sides
unequivocally stated that defecti on is like a contagious disease and needs proper
treatment. We are also not inclined to affix seal of approval on an act of defection.

13.??? It vas argued by Mr. Khalid Anwar that disqualifications mentioned in Article 63 are
not exhaustive rind do not prevent the Legislature to prescribe disqualifications by sub-
Constitutional legislati on as well as forum for determinati on of any questi on relating
thereto. He also pleaded for wide and liberal constructi on of the Constitutional provisions.
To support his contention, he placed reliance on M/s. Haider Automobile Ltd. v. Pakistan PLD
1969 SC 623, Government of Pakistan v. Syed Akhlaque Hussain PLI) 1965 SC 527, Arif Iqbal
Hussain Bhatti v. Federati on of Pakistan PLD 1994 Lahore' 222. Syed Wasey Zafar v.
Government of Pakistan PLD 1994 SC 621 and Benazir Bhutto v. Federati on of Pakistan PLD
1988 SC 416. Mr. Khaiid Anwar also placed reliance on Government of Balochistan v.
Azizullah Ment on PLD 1993 SC 341, Pakistan Industrial Development Corporati on v.
Pakistan 1992 SCMR 891, Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993
SC 473, Federati on of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 and Sharaf Faridi v.
Federati on of Islamic Republic of Pakistan PLD 1989 Karachi 404 to contend that the
Constituti on is a living and organic document and widest possible constructi on be made.

Mr. Khalid Anwar also referred to Inamur Rehman v. Federati on of Pakistan 1992 PSC 677,
Mchreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397 anti Province of Fast
Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854 to contend that presumpti on regarding
constitutionality of law and law must be saved, rather thann destroyed or struck down.

14. Syed Sharifuddin Pirzada relied on Reference by the President PLD 197 C (Pak.) 219,
Fazalul wader Chowdhry v. Muhamad Abdul Haque P:D 1963 SC 486, Messrs Karachi Steam
Navigati on Co. Ltd. v. M/s. Abdul Rahman-Abdul Ghani PLD 1962 SC , State Life Insurance
Corporati on of Pakistan v. Mercantile Mutual Insurance Co. Ltd. 1993 SCMR 1394 and
Pakistan P.V.C. Ltd. v. Government of Sindh 1990 CLC 779 and Federati on of Pakistan v.
Saeed Ahmad Khan PLD 1974 SC 151 to contend that the Constituti on has to be construed
like any other document reading it as a whole and giving to every part there of a meaning
consistent with the other provisions of the Constituti on and that redundancy cannot be
attributed to the Legislature.

15. There is no cavil with the propositi on advanced by Mr. Khalid Anwar as to the principles
of interpretati on - of Constitutional documents, as Z enunciated in the precedent cases, but
as rightly submitted by Syed Sharifuddin Z Pirzada, the Constitutional provisions may not be
stretched by interpretati on with the object of saving the validity of a statute which is
palpably in conflict Z with the Constitution. The principle that presumpti on regarding
constitutionality of law and law must be saved rather than destroyed or struck A down is
subject to the excepti on enunciated in Abdul Aziz alias Labha v. A Province of West
Pakistan' PLD 1958 SC (Pak.) 499 strongly relied on by Mr. A Iftikhar Hussain Gillarti, learned
counsel for the appellant. The excepti on is,? "it is not permissible to adapt the Constituti on
for tile purpose of saving a statute when in fact the requirernent? is that all statutes and
more' generally all sub-Constitutional laws should conform to the Constitution.
Constitutional provisions may not be stretched by interpretati on with the object of saving
the t: validity of a statute, which ex facie contravenes the Constitution." Cornelius, J. A.
further observed:--

"In all circumstances, the full scope rind extent of tire Constitutional A provisi on must first
be determined, and if the statute in question, is capable of a constructi on which is
conformable to the true meaning of the relevant Constitutional provision, then that
Constructi on should be accepted."

In order to understand the scope of Article 63 of the Constitution, it is natural to inquire into
the subject-matter with respect to which it is used, the language employed and the object in
view. 'This is a cardinal rule of constructi on of Acts of Parliament and is equally applicable to
the constitutional documents. It is, therefore, the duty of the Court to ascertain and give
effect to the object of the Constitution-makers as expressed in the aforesaid Article. A bare
reading of paragraphs (a) to (p) of Article 63(1) would show that they enumerate the
disqualifications of a member of the Parliament and clause (2) of Article 63 provides
methodology and machinery for deciding any questi on relating thereto by the Chief Electi
on Commissioner whereas the forum provided under secti on 8-B of the Act for determinati
on of such a questi on is the Electi on Commission. In this context it is to be considered
whether secti on 8-B of the Act, which is undoubtedly a sub-?constitutional law, ultra vires
Article 63(2) qua the forum. Clearly, the subject?matter of clause (2) of Article 63, a self-
contained code, is the forum of the Chief Electi on Commissioner, which has been created by
the Constituti on for determinati on of any questi on relating to disqualificati on of member
of C Parliament irrespective of the fact whether it arises out of paragraphs (a)? to (p) of
clause (i) of Article 63 or any other special law of sub-Constitutional nature. The object in
view is enshrined in paragraph (d) of Article 37 of the? Constitution, which provides that tile
State shall ensure inexpensive and Expeditious justice. T he object, the constituti on makers?
had, it appears to be, to avoid multiplicity of forums ill the matter of deciding the questi on
of disqualifications of a member of a House, for the benefit of the members of the
Parliament, and to create a permanent machinery for deciding such questions by the Chief
Election? Commissioner alone: dad there been an express menti on of disqualifications of
clause (1) in clause (2) of Article 63, there would have been no room for argument that the
forum of the Chief Electi on Commissioner has been created to decide questions of
disqualifications as stated in clause (i) anti not disqualifications provided under any sub?
Constitutional law. We ought to construe Article 63(2) to make it available for carving out
the object of the Constitution-makers so as to make the law of disqualificati on of members?
of? Parliament adjudicated up on by uniform forum. C This view finds support from Freme v.
Clement (1881) L.Ri18 Ch.D.499, which was expressed in the following terms.--
"We ought to adopt that interpretati on which will make the law,? uniform and will remedy
the evil which prevailed in all the cases to which the law can be fairly applied."

16. The Constituti on confers exclusive jurisdicti on on the Chief Electi on Commissioner to
decide any questi on whether a member of the Parliament has become disqualified. The
Chief Electi on Commissioner and the Electi on Commissi on are the creati on of different
Constitutional provisions. `the former is appointed under Article 213 and the latter under
Article 218. The duties of the former are laid down in Article 219 and those of the latter in
Article -1h(3) Butt, the offices are separate and distinct legal entities exercising powers
within the field reserved for them in Part VII of the constitution. The Electi on Commissi on is
not synonymous with the Chief Electi on Commissioner although the latter heads the
former. Thus, visualized, the questi on of disqualificati on of a member of the Parliament
cannot be decided by the Electi on Commissi on and the put poi tea exercise of power by it
under secti on 8-B tantamount to abdicati on or surrender of power excluding vesting in the
Chief Electi on Commissioner, which has rendered the entire proceedings before the Electi
on Commissi on as coram n on judiee and void ab D initio. Secti on 8-B of the Act, viewed in
this context, has the effect of taking away or abridging the powers of the Chief Electi on
Commissioner, therefore, to that extent, ultra vires the Constitution. The plea of the learned
counsel for the appellant that the questi on of disqualificati on vas decided by a better
designated forum, which included the Chief Electi on Commissioner, is not tenable as there
was deprivati on of jurisdicti on of the competent authority, namely, the Chief Electi on
Commissioner.

Also the fact that the parties were heard by the Electi on Commissi on without any objecti
on as to jurisdicti on is of no legal consequence. Clearly, there is no estoppel against a
statute and to say the least against the Constitution. The inherent defect in the impugned
decisi on cannot be cured by recourse to the principle of natural justice, i.e. full participati on
of the parties in the proceedings before the Electi on Commissi on without raising any
objecti on to the jurisdiction, in that, what is prohibited by the Constituti on cannot be
achieved indirectly or by implication. This view finds support from Amanullah Khan and
others v. Federal Government of Pakistan PLD 1990 SC 1092, in which the power to grant
registrati on under secti on 5 of the Securities ' and Exchange. Ordinance (XXVII of 1969) was
delegated by the Federal Government to the Member Corporate Law Authority (Corporate
Law Wing). He, however, did not pass the order exclusively, but in associati on with other
members of the Authority including the Chairman, questi on arose whether the order of the
Authority which was of a higher status than that of the Member,

????????????????? Corporate Law Authority was void. A pull Bench of this Court comprising
of five Hon'ble Judges held that interventi on of the Corporate Law Authority in the matter
of entertaining and also disposing of the applicati on under secti on 5 of tire Ordinance was
wholly without jurisdicti on finding no support from the statute and amounted to abdicati
on such as to vitiate the exercise of power.

In the case of Muhammad Yaqoob v. Government of Balochistn and another PLD 1989 SC
13, a Full Bench of this Court comprising of five Hon'ble Judges, presided over by
Muhammad Haleem, CJ., held, "where the impugned order ex facie without lawful authority
and there was deprivati on on, instructi on the competent Court, the plea that no prejudice
was caused hardly available".

Also refer Ikrarm bus Service and others' Y. Member, Board of 'Revenue PLD 1963 SC 564
and Yamin Oureshi v. Islamic Republic of Pakistan P'LD 1980 SC 22 wherein it was held that
there is no estoppel against a statute. In any case, Syed Sharifuddin Pirzada specifically
denied that he conceded jurisdicti on before the Commission.

17. 1 would? now examine the plea of Syed Iftikhar Hussain Gillani as to the nature of Article
63 with particular reference to the forum of the Chief Electi on Commissioner created under
clause (2) ibid in the light of the observations made in the case of Abdul Aziz alias Labha
(supra). The precise contenti on was that the disqualifications provided in paragraphs (a) to
(p) of Article 63(1) belong to the category of sub-Constitutional law, in that, disqualifications
for being a member of the National or Provincial Assembly were already included in the Act.
These disqualifications with certain amendments belonging to the category of statutory law
were enacted in the constitution, therefore. the vires of the provisions of secti on 8-B of the
Act being a sub-Constitutional law, cannot be tested with reference to another sub?
Constitutional law, i.e. Article 63, even in so far as it relates to the creati on of forum of the
Chief Electi on Commissioner. The observations in the precedent case have to be
understood and construed with reference to the wording of Article 7(4) of the 1956
Constitution, which provided that "no law providing preventive detenti on shall authorise
the detenti on of a pers on for a period exceeding three months unless the appropriate
Board has reported, before the expirati on of the said period of three months, that there is,
in its opinion, sufficient cause for such detention". Also refer clause (2) of Article 5 of the
1956 Constitution, which provided that "no pers on shall be deprived of life of liberty save in
accordance with law".

A perusal of the aforesaid provisi on of the 1956 Constituti on would show that the main
reas on for holding Article 7(4) as sub-Constitutional law was that Article 5(2) itself
contemplated detenti on in accordance with law, in this context Cornelius, J., held: "Article 7
proceeds to make detailed provisions regarding particular aspects of arrest and detention, it
is clearly laying down law in a field which is included in the larger subject of the liberty of
persons under the law". on these premises, it was held that Article 7(4) cannot be given a
higher status than a sub-Constitutional legislation, especially, where a law already exists in a
statute, namely, the Cole of Criminal Procedure. In the case in hand the positi on is entirely
different, in that, the 1973 Constituti on itself created composition, durati on and meetings
of the Majlis-e-Shoora (Parliament) vide Chapter 2 of Part 111. The setting up of the
Parliament is provided in Article 50. It is to comprise of the President and two Houses, to be
known respectively as National Assembly and the Senate. Compositi on of the National
Assembly is given in Article 51; its durati on in Article 52; provisi on for summoning and
prorogati on in Article 54; compositi on of the Senate is given in Article 59; qualifications for
membership of the Parliament are mentioned in Article 62; disqualifications for being
member are given in Article 63 (which relate to pre- and post-electi on period); and forum of
the Chief Electi on Commissioner has been created for determinati on of questi on relating
to disqualifications. This Court in Benazir Bhutto v. Federati on of Pakistan PLD 1988 SC 416
declared secti on 3-B of the Act void in entirety and held that to become a member of a
political party is a fundamental right. Viewed in this perspective, the provisions contained in
the Constituti on regarding disqualifications for membership of the Parliament cannot be E
considered to be a law of sub-Constitutional category. These provisions were E included in
the Constituti on to give them higher status of constitutional nature.

18. The case of Abdul Aziz alias Labha (supra) relied up on by Mr. Iftikhar Hussain Gillani in
support of another limb of his contenti on as to the saving of the forum provided in secti on
8-B of the Act, goes against him. In , that case a questi on arose whether with the expiry of
subsecti on (8) of secti on 3 of the Punjab Public Safety Act, 1949, which was replaced by
West Pakistan Preventive Detenti on Laws (Amendment) Ordinance, 1956, the Advisory
Board constituted by the Chief Justice also ceased to exist. It was held "In constituting that
Board, the Chief Justice of the West Pakistan High Court relied up on the powers conferred
on him by Article 7(4) of the 1956 Constitution, and that mere fact that an additional
reference was made to subsecti on (8) of secti on 3 of the relevant statute, which subsecti on
ceased to have effect on 29-5-1956 long before the present detenti on orders were made,
cannot be urged in diminuti on of the authority derived from the Constituti on itself. As we
have mentioned above, the notificati on was expressed so as to relate to the appointment of
the advisory board and not to the expired subsection, but to the secti on as a whole. The
secti on deals with preventive detenti on and, therefore, falls within the mischief of clause (4)
of Article 7, so that the appointment of the advisory board for the purpose of the secti on
was clearly and perfectly in order". Also refer Raja Muhammad

????????????????? Afzal v. Ch. Muhammad Altaf Hussain 1986 SCMR 1737 wherein it was
observed:--

" ... ... ... ...where express authorizati on exists in favour of two F authorities or forums in
respect of identical subject, the one conferred F by superior law prevails over that conferred
by inferior law ... ... ..."

In these circumstances and for the supplementary reasons I have agreed with the Hon'ble
Chief Justice on the facts and law, as well as the conclusions formulated by him.? Resultantly
the provisions of secti on 8-B of the Act to the extent of?? forum are declared ultra vires the
Constitution. The Chief Election?? Commissioner alone can determine the questi on of
defecti on on merits and on legal issues arising in the references. ?

The appeals are hereby dismissed being incompetent. ??????????????

(Sd.)

IRSHAD HASAN KIJAN, J.

ORDER of THE COURT.

By majority of seven to five the Appeals are dismissed as being incompetent.

(Sd.)
SAJJAD ALI SHAH, C. J.

(Sd.)
,SAAD SAOOD JAN, J.

(Sd.)

,AJMAL MIAN, J.

(Sd.)

SALEEM AKHTAR, J

.(Sd)
SAIDUZZAMAN SIDDIQUI, J.

(Sd)

FAZAL ILAHI KHAN, J.

?(Sd.)

ZIA MAHMOOD MIRZA, J.

(Sd.)
FAZAL KARIM, J.

(Sd.)

MUHAMMAD MUNIR KHAN,

(Sd.)

MIR HAZAR KHAN KHOSO, J.

(Sd.)
IRSHAD HASAN KHAN, J.

(Sd.)
MUKHTAR AHMAD JUNEJO, J.

M.B.A./S-920/S?????????????????????????????????

Order accordingly.
Discussion

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