IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Civ. Misc. Appeal No. ______/2022

IN
Constitutional Petition No. Nil/2022

1. Supreme Court Bar Association of Pakistan

through Mr. Muhammad Ahsan Bhoon, its President
Supreme Court Building, Constitutional Avenue, Islamabad

2. Mr. Muhammad Ahsan Bhoon

Advocate Supreme Court,
President SCBA/Member Pakistan Bar Council
Supreme Court Building, Constitution Avenue
Islamabad

………….. Petitioners/Appellants
VERSUS

Federation of Pakistan
through Secretary, Ministry of Law & Justice
Pak Secretariat, Islamabad
…………...Respondent

APPEAL UNDER ORDER V RULE 4 OF THE SUPREME COURT

RULES, 1980 FROM THE ORDER DATED 29-01-2022 PASSED BY
THE ASSISTANT REGISTRAR (CIVIL-II) OF THIS
HONOURABLE COURT EXERCISING THE JURISDICTION OF
THE REGISTRAR WHEREBY THE CONSTITUTIONAL
PETITION NO. NIL OF 2022 FILED BY THE APPELLANTS WAS
RETURNED AS “NOT ENTERTAINABLE”

It is respectfully submitted as follows:

1. That the Appellants had filed Constitutional Petition No. Nil of 2022
(“Constitutional Petition”) under Article 184(3) of the Constitution of
the Islamic Republic of Pakistan, 1973 (“Constitution”) which has been
returned by the Assistant Registrar of this Honourable Court being “not
entertainable” vide order dated 29-01-2022 (“Impugned Order”) with the
following objections: -
“a. That the petitioners have not pointed out as to what
questions of public importance in the instant case are
involved with reference to enforcement of any of the
Fundamental Rights guaranteed under the
Constitution, so as to directly invoke jurisdiction of the
Supreme Court under Article 184(3).

b. That the petitioners are invoking the extraordinary

jurisdiction of the Supreme Court under Article 184(3)
of the Constitution for the redressal of an individual
grievance, which is not permissible in terms of the
judgment reported as 1998 SCMR 793 titled as
“Zulfiqar Mehdi. Vs. PIA, etc.”

c. That the ingredients for invoking extra ordinary

jurisdiction of this Court under Article 184(3) of the
Constitution have not been satisfied.

d. That Notice issued to the respondent is not properly

drawn as it is neither mentioned therein that for what
purpose this Constitution Petition is being filed before
this Court nor copy of petition has been provided to
the respondent.

e. That the petitioners have not approached any other

appropriate forum available under the law for the
same relief and have also not provided any
justification for not doing so.

f. That two contradictory prayers have been made in

the Constitution Petition, one seeking declaration
under Article 184(3) that disqualification only applies
to the election under question and the other that
declaration under Article 184(3) do not constitute
declarations by a court of law.

g. That persons declared disqualified by this Court

under Article 62(1)(f) of the Constitution have already
availed remedy under the law.
 h. That matter has already been resolved by a 5-
Member Larger Bench of this Court vide judgment
reported as PLD 2018 SC 405 that disqualification
entails a perpetual time bar.

2. That the Impugned Order is against law and facts on the file and is,
therefore, liable to be set aside and the Constitutional Petition No. Nil of
2022 filed by the Appellants may kindly to be admitted for hearing on
merits.

3. That the Appellants pray for setting aside the Impugned Order returning
the Constitutional Petition No. Nil of 2022 as “Not Entertainable”, inter
alia, on the following

GROUNDS:

Ingredients of Original Jurisdiction of this Honourable Court under Article

184(3) of the Constitution

a) Through objections bearing serial numbers ‘a’ and ‘c’, the Impugned
Order has held that the Constitutional Petition does not fulfil the
requirements for this Honourable Court’s original jurisdiction provided in
Article 184(3) of the Constitution. For a petition to be maintainable under
Article 184(3) of the Constitution this Honourable Court must consider
that it: -

i. raises a question of public importance, and

ii. the said question must be with reference to the enforcement of
any of the Fundamental Rights conferred by Chapter I of Part II
of the Constitution.

b) This August Court has, through its jurisprudence, evolved and regulated
its original jurisdiction under Article 184(3) of the Constitution. Per the
jurisprudence of this August Court, the instant Constitutional Petition
fulfils the criteria for the exercise of jurisdiction under Article 184(3) of
the Constitution. Thus, the Impugned Order is liable to be set aside.
Question of Public Importance

c) Article 184(3) of the Constitution requires that a Petition thereunder must

raise a question of “public importance” for it to be entertainable. This
requirement for exercise of jurisdiction under Article 184(3) of the
Constitution has been developed by this Honourable Court through its
jurisprudence.

In Miss Benazir Bhutto v. Federation of Pakistan and another 1 where the

petitioner had assailed, inter alia, amendments made to the Political
Parties Act, 1962 on the touchstone of Articles 17 and 25 of the
Constitution, this Honourable Court held as follows: -
Lastly is the consideration of the connotation of the
expression “public importance” which is tagged to the
enforcement of the Fundamental Rights as a pre-
condition of the exercise of the power. This should not be
understood in a limited sense, but in the gamut of the
constitutional rights of freedoms and liberties, their
protection and invasion of such freedoms in a manner
which raises a serious question regarding their
enforcement. Such matters can be viewed as of public
importance, whether they arise from an individual’s case
touching his human rights of liberty and freedom, or of a
class or a group of persons as they would also be
legitimately covered by this expression.2 (Emphasis
supplied)

This Honourable Court in Ms. Benazir Bhutto, approved the earlier ruling
in Manzoor Elahi v. Federation of Pakistan 3 wherein it was held as
follows: -
In order to acquire public importance, the case must
obviously raise a question which is of interest to, or
affects, the whole body of people or an entire community.
In other words, the case must be such as gives rise to
questions affecting the legal rights or liabilities of the
public or the community at large, even though the

1
PLD 1988 SC 416
2
Ibid, P. 491
3
PLD 1975 SC 66
 individual, who is the subject-matter of the case, may be
of no particular consequence.
Seen in this light, there can be little doubt as to the public
importance of the questions arising in this case. I think I
will not be far wrong in saying that it is not often that a
single case raises so any questions of public importance
touching the liberty of the citizen. In all systems of law
which cherish individual freedom and liberty, and which
provide constitutional safeguards and guarantees in this
behalf, any invasion of such freedom in circumstances
which raise serious questions regarding the enforcement
and availability of those safeguards must be regarded as
a matter of public importance.4 (Emphasis supplied)

d) Developing the test further, in Mrs. Shahida Zahir Abbasi v. President of

Pakistan5, this Honourable Court observed as follows: -
From above-quoted passages, it is quite clear that
whether a particular case involved the element of 'public
importance' is a question which is to be determined by
this Court with reference to the facts and circumstances
of each case. There is no hard and fast rule that an
individual grievance can never be treated as a matter
involving question of public importance. Similarly it
cannot be said that a case brought by a large number of
people should always be considered as a case of 'public
importance' because a large body of persons is interested
in the case. The public importance of a case is
determined as observed by this Court in Manzoor Ellahi's
case (supra) by decision on question affecting the legal
rights and liberties of the people at large, even though the
individual who may have brought the matter before the
Court is of no significance. Similarly, it was observed in
Benazir Bhutto's case (supra), that public importance
should be viewed with reference to freedom and liberties
guaranteed under Constitution, their protection and
invasion of these rights in a manner, which raises a
serious question regarding their enforcement,
irrespective of the fact whether such infraction of right,
freedom or liberty is alleged by an individual or a group
of individuals.6 (Emphasis supplied)

This August Court observed further as follows: -

From the above discussion, it is quite clear that this
Court while construing the provisions of Article 184(3) of

4
Ibid, P. 145
5
PLD 1996 SC 632
6
Ibid, P. 659
 the Constitution did not follow the conventional
interpretative approach based on technicalities and
ceremonious observance of rule or usage of
interpretation. Keeping in view the avowed spirit of the
provision, this Court, preferred the interpretative
approach which received inspiration from the trial of
provision which saturated and invigorated the entire
Constitution, namely, the Objectives Resolution (Article
2A), the Fundamental Rights and Directive Principles of
State Policy so as to achieve democracy, tolerance,
equality and social justice according to Islam. The liberal
interpretative approach opened the door of ‘access to
justice to all’.7

It is clear from the above reproduced excerpts of this August Court’s

judgments that in interpreting the test provided in Article 184(3) of the
Constitution, this Court has advanced a liberal approach in assessing
whether a question of public importance has been raised.

e) In determining whether a question is of public importance, this

Honourable Court has also considered potential future consequences
arising out of a petition. In I. A. Sherwani v. Government of Pakistan 8 this
Honourable Court observed that “the question involved is of public
importance as it affects all the present and future pensioners and
therefore, falls within the compass of clause (3) of Article 184 of the
Constitution.”9

f) In Javed Jabbar v. Federation of Pakistan 10 this Honourable Court had the

occasion to examine the vires of Article 8AA of the General Elections
Order, 2002 in its original jurisdiction under Article 184(3) of the
Constitution. Article 8AA of the General Elections Order, 2002 provided
for a person to be “disqualified from being elected or chosen as and from
being a member of the Senate if, having been a candidate for Election to
the National Assembly or a Provincial Assembly at the elections held
under this Order he has not been elected to such Assembly.” On the

7
Ibid, P. 662
8
1991 SCMR 1041
9
Ibid, Paragraph 10
10
PLD 2003 SC 955
 question of whether the Petition raised a question of public importance in
terms of Article 184(3) of the Constitution, this Honourable Court held as
follows: -
In view of the above interpretation of the expression
"public importance", the status and importance of the
Senate which is an integral part of Majlis - e- Shoora
(Parliament) and consists of the chosen representatives of
the people, mode of election of members of the Senate,
prerogative of the political parties to award tickets to
persons of their choice and solicited scrutiny of the
amending Order there is no difficulty in holding that the
petitions involve a question of public importance within
the contemplation of Article 184(3) of the Constitution.
As regards infringement and enforcement of a
fundamental right of the petitioners, suffice it to say that
right to contest an election is not only a statutory but also
a fundamental right conferred by Chapter 1 of Part II of
the Constitution. Every citizen who fulfils the conditions
laid down under Articles 62 and 63 of the Constitution
and the related law is eligible to contest an election and
to participate in the ensuing formation of Government
either in his individual capacity or as a member of a
political party. Such right is guaranteed under Article
17(2) of the Constitution and has been recognized as such
in Mian Muhammad Nawaz Sharif v. President of
Pakistan PLD 1993 SC 473 and Pakistan Muslim League
(Q) v. Chief Executive of Islamic Republic of Pakistan
PLD 2002 SC 994.11 (Emphasis supplied)

The instant Constitutional Petition relates not only to the qualification for
elections to the Senate, as it did in Javed Jabbar, but to the qualification
for a member of any representative/elected office, including the National
Assembly, Provincial Assemblies and Local Governments. Thus, the
question raised in the instant Constitutional Petition satisfies the test for
public importance as has been held by this Honourable Court.

g) In the case titled Al-Jehad Trust v. Federation of Pakistan 12, Justice Ajmal
Mian observed as follows: -
I am inclined to hold that only a practising advocate but
even a member of the public is entitled to see that the
three limbs of the State, namely, the Legislature, the
11
Ibid, Paragraph 16
12
PLD 1996 SC 324
 Executive and the Judiciary act not in violation of any
provision of the Constitution, which affect the public at
large. The Fundamental Rights, which are enshrined in
our Constitution and which also have the backing of our
religion Islam, will become meaningless if there is no
independent Judiciary available in the country. The
independence of Judiciary is inextricably linked and
connected with the Constitutional process of appointment
of Judges of the superior Judiciary. If the appointments of
Judges are not made in the manner provided in the
Constitution or in terms thereof, the same will be
detrimental to the independence of Judiciary which will
lead to lack of confidence among the people. In my view,
the appellants/petitioners have locus stand as the
Constitutional questions raised in the appeal as well as in
the aforesaid Constitution petition are of great public
importance as to the working of the Judiciary as an
independent organ of the State. Even otherwise, the
question of locus stand in the present case has lost
significance for the reason that we have admitted the
above Constitution petition under Article 184(3) of the
Constitution for examining the scope and import of the
provisions relating to Judiciary. It may be observed that
under Article 184(3) of the Constitution, this Court is
entitled to take cognizance of any matter which involves a
question of public? importance with reference to the
enforcement of any of the Fundamental Rights conferred
by Chapter I of Part II of the Constitution even suo motu
without having any formal petition. 13 (Emphasis
supplied)

In the case of Workers’ Party Pakistan v. Federation of Pakistan 14 this

Honourable Court entertained Petitions under Article 184(3) seeking
implementation of electoral laws in line with constitutional requirements
for the effective exercise of the rights enshrined in, inter alia, Article 17
of the Constitution.

Subsequently, in the case of Khan Asfandyar Wali and others v.

Federation of Pakistan15, this Honourable Court considered questions
regarding the vires the National Accountability Ordinance, 1999 to be

13
Ibid, Paragraph 14
14
PLD 2012 SC 681
15
PLD 2001 SC 607
 questions of public importance since “the NAB Ordinance affects the
public at large”16

h) In the instant Constitutional Petition, the Petitioners/Appellants seek this

Honourable Court’s indulgence on questions relating to the interpretation

of Article 62(1)(f) of the Constitution and its interplay with the rights

guaranteed under Article 17 of the Constitution. The outcome of the

instant Petition will not only determine the ability of present and future

candidates to contest elections, but also the electoral choice exercised by

the electorate at the Federal, Provincial and Local Government level. The

questions raised in the instant Petition go to the heart of a functioning

democracy as envisaged by the Constitution and are, clearly, questions of

public importance concerning the effective exercise of the rights enshrined

in Article 17 of the Constitution. The exercise of these rights, under

Article 17 of the Constitution, form the bedrock of a functional democracy

by allowing people to freely participate in the political process through

contesting elections and casting votes. Arbitrary curtailment of these

rights, by permanently disqualifying candidates without there being such a

provision in the Constitution, restricts this constitutionally guaranteed

freedom. Thus, the maintainability of the instant Petition meets the criteria

of Article 184(3) of the Constitution in terms of raising questions of

public importance.

i) It is also pertinent to note that this Honourable Court has, in an earlier

judgment titled Sami Ullah Baloch and others v. Abdul Karim

Nousherwani and others17 entertained in its original jurisdiction similar

questions regarding the permanence attributed to disqualification under

Article 62(1)(f) of the Constitution. In that case, this Honourable Court

considered the matter of sufficient significance to constitute a larger bench

comprising five honourable members. The Petitioners/Appellants, through

the instant Constitutional Petition, are seeking further clarification and

16
Ibid, Paragraph 167
17
PLD 2018 SC 405
 reconsideration on the same questions, in light of their submissions, which

have not been made before this Honourable Court prior.

Enforcement of Fundamental Rights

j) It has long been settled by this Honourable Court that the right to freedom

of association, as enshrined in Article 17 of the Constitution, includes the

right to not only form a political party, but also all rights consequential

thereto, including the right to contest elections and form the government. 18

It has also been held by this Honourable Court that the infringement of

this right is sufficient to invoke the extraordinary original jurisdiction of

this Honourable Court.19

k) The instant Petition relates to the interpretation of Article 62(1)(f) in light

of the rights guaranteed under Articles 17, read with Articles 4, 9 and 10-

A of the Constitution. The Petitioners/Appellants respectfully submit that

by attributing lifetime disqualification to a declaration pursuant to Article

62(1)(f) of the Constitution, citizens’ rights guaranteed under Article 10-

A, 17 and 25 of the Constitution are disproportionately curtailed as

follows: -

(i) Article 62(1)(f) of the Constitution does not provide for a

disqualification thereunder to be perpetual/ permanent. On the

contrary, the text of Article 62(1)(f) is silent vis-à-vis the

duration of a disqualification. Attributing permanence or

perpetuity to a disqualification pursuant to Article 62(1)(f) of the

Constitution, where such permanence/perpetuity is not provided

for in the language of the Constitution disproportionately curtails

the rights of candidates guaranteed under Article 17 of the

18
Benazir Bhutto v. Federation of Pakistan and another, PLD 1988 SC 416; Benazir Bhutto v.
Federation of Pakistan, PLD 1989 SC 66 Mian Muhammad Nawaz Sharif v. President of Pakistan and
others, PLD 1993 SC 473
19
Mohtarma Benazir Bhutto and another v. President of Pakistan and others, PLD 1998 SC 388,
Paragraph 165
 Constitution. Where two interpretations of a Constitutional

provision are possible, it is the one that upholds Fundamental

Rights that ought to be preferred over one that curtails

Fundamental Rights.

(ii) Lifetime/perpetual disqualification restricts the electoral choice

available to prevent the electorate of a constituency (be it for the

Parliament, a Provincial Assembly or a Local Government) from

electing candidates who have been permanently disqualified

under Article 62(1)(f) of the Constitution, which deprives the

citizens/voters from the free exercise of the right to suffrage and

choose their representatives in accordance with their will.

(iii) Permanent disqualification of candidates under Article 62(1)(f)

in the original jurisdiction of this Honourable Court pursuant to

Article 184(3) of the Constitution or the Honourable High

Courts under Article 199 of the Constitution deprives candidates

from the right to due process and fair trial as enshrined in

Articles 4, 10-A and 25 of the Constitution.

l) Thus, the instant Petition seeks the enforcement of fundamental rights

guaranteed in the Constitution’s Articles 4, 10-A, 17 and 25 and the

questions raised therein are of public importance. Therefore, the

Impugned Order is liable to be set aside.

Redressal of Individual Grievance

m) The Impugned Order, through objection bearing serial number ‘c’, has

incorrectly and baselessly assumed that the instant Constitutional Petition

seeks the redressal of an individual grievance.

n) The relief sought by the Petitioners/Appellants in the instant

Constitutional Petition is not restricted to any individual(s). On the

contrary, the relief sought by the instant Constitutional Petition impacts,

inter alia, the following classes of persons: -

(i) Candidates currently disqualified vide declarations issued under

Article 62(1)(f) for Parliament, Provincial Assemblies and Local

Governments alike.

(ii) Potential candidates who may be disqualified permanently in the

future through declarations issued under Article 62(1)(f) of the

Constitution.

(iii) The electorate for elections on federal, provincial and local levels

who would be deprived of their freedom to vote for the candidate

of their choice on account of permanent disqualification under

Article 62(1)(f) of the Constitution.

o) Without prejudice to the foregoing, and in addition thereto, it is also

submitted that the Petitioner No. 1 (Supreme Court Bar Association) is the

apex representative body of the legal fraternity. Not only does Petitioner

No. 1 have a direct interest in a functional and vibrant democracy in

Pakistan, but also has several members who are current, former and

potentially future members of elected bodies including the Senate,

National Assembly, Provincial Assembly and Local Governments. As

such the relief sought by the Petitioner is not specific to any individual(s),

but relates to every person interested in the representative democracy

established by the Constitution.

Availability of Adequate Alternative Remedy

p) The Impugned Order, through objection bearing serial number ‘e’ states

that the Petitioners/Appellants “have not approached any other

appropriate forum available under the law for the same relief and have

also not provided any justification for not doing so”.

q) It is most respectfully submitted that the instant Petition relates to the

interpretation of Article 62(1)(f) of the Constitution. On the subject, this

Honourable Court has already passed several judgments, including its

judgment titled Sami Ullah Baloch and others v. Abdul Karim

Nousherwani and others20 wherein this Honourable Court has held that

“the permanent incapacity of a candidate for election under Article 62(1)

(f) of the Constitution is not an arbitrary, excessive or unreasonable

curtailment of his fundamental rights”21

r) The Petitioners, through the instant Constitutional Petition, are seeking a

reconsideration of this Honourable Court’s earlier view, in light of

constitutional submissions which have not been brought to this

Honourable Court’s notice during earlier litigations concerning the subject

matter, including the Sami Ullah Baloch judgment.

s) In terms of Article 189 of the Constitution, the judgments pronounced by

this Honourable Court are binding on all other Courts in Pakistan. Thus,

there is no forum, other than this Honourable Court that can re-examine

the earlier position taken by this Honourable Court by entertaining the

instant Constitutional Petition. It is also important to note here that this

Honourable Court, in terms of Article 189 of the Constitution, is the only

Court empowered to reconsider, re-evaluate and re-examine its earlier

decisions, especially where novel questions are raised, as is the case in the

instant Constitutional Petition.

20
PLD 2018 SC 405
21
Ibid, Paragraph 35
t) The Petitioners/Appellants, therefore, could not seek the relief prayed for

before any other Court other than this Honourable Court.

Contradictory Prayers

u) The Impugned Order, in objection bearing serial number ‘f’ has

incorrectly held that “two contradictory prayers have been made in the

Constitution Petition, one seeking declaration under Article 184(3) that

disqualification only applies to the election under question and the other

that declaration under Article 184(3) do not constitute declarations by a

court of law”.

v) The prayer for relief, sought by the Petitioners/Appellants through the

instant Constitutional Petition, however, are not contradictory, but

independent and exclusive of each other.

w) Through the first prayer clause in the instant Constitutional Petition, the

Petitioners seeks a declaration that a disqualification under Article 62(1)

(f) of the Constitution is applicable only to the extent of an election under

question. The basis for the aforesaid Constitutional Petition is that the

language of Article 62(1)(f) of the Constitution does not expressly provide

for the disqualification under the said Article to be permanent/perpetual.

In the absence of such a provision, the Petitioners seek a declaration that

Article 62(1)(f) of the Constitution be interpreted in a manner so as to

uphold the rights enshrined in Article 17 of the Constitution. Such an

interpretation would restrict the disqualification under Article 62(1)(f) of

the Constitution to an election under question.

x) The second prayer clause in the instant Constitutional Petition, wholly

independent from, and exclusive to the first, relates specifically to

declarations made by the Honourable Constitutional Courts under Articles

184(3) and 199 of the Constitution. The basis for this prayer clause is that
 requirements for due process and fair trial, as established by this

Honourable Court itself in, inter alia, Sami Ullah Baloch case22, are not

fulfilled where a disqualification is made by a Constitutional Court in its

original jurisdiction.

y) The two prayer clauses, as afore-stated are mutually exclusive, and stem

from independent submissions made by the Petitioners/Appellants in the

instant Constitutional Petition. Thus, this objection in the Impugned Order

is without merit.

Notice issued

z) The Impugned Order, vide objection bearing serial number ‘d’ has stated

that notices issued have not been properly drawn up and that a copy of the

Petition has not been furnished to the Respondent.

aa) It is most respectfully submitted that the notices issued have, in fact, been

properly drawn up and duly served upon the Respondent. Out of abundant

caution, the Petitioners/Appellants have, after the receipt of the Impugned

Order, again furnished a copy of the Petition to the office of the learned

Attorney General for Pakistan.

(True copy of notice issued to the Attorney General for Pakistan is

attached herewith as Annexure ‘A’)

Existing Ruling of this Honourable Court on the Subject Matter

bb) While this Honourable Court has in, inter alia, the Sami Ullah Baloch

considered the question of duration of disqualification under Article 62(1)

(f) of the Constitution, the Petitioner respectfully submits that several

important Constitutional considerations have yet to be addressed by this

Honourable Court.
22
Ibid
cc) It has been held in the Sami Ullah Baloch judgment as follows: -

It is clear from the findings recorded in the afore-noted

four judgments by this Court that the absence of a time
limit for the ineligibility of a candidate for election in
Article 62(1)(f) of the Constitution is the basis for holding
his incapacity to be incurable by efflux of time. The
reasons recorded in our judgment reinforce that
conclusion. It may also be noted that the Constitution
envisages other situations in which a permanent bar to
the eligibility of a candidate for election is enforced so
long as the judgment that records or justifies the
disability of the candidate remains in existence and
occupies the field. This view is supported by Articles
63(1)(a) and 63(1)(b) of the Constitution that provide
disqualifications on account of judicial declaration
regarding the mental unfitness or the undischarged
insolvency of a candidate for election. These disabilities
also continue so long as the adverse judgment is in the
field. Finally, it may be noted that the prescription by the
18th Constitutional Amendment of an adverse judicial
declaration to precipitate the ineligibility of a candidate
for election has provided a lawful, transparent and fair
mechanism to a candidate under challenge both for
contesting and for avoiding the onset of an embargo on
his eligibility to contest elections. The restriction imposed
by Article 62(1)(f) of the Constitution for the eligibility of
a candidate for election to Parliament serves the public
need and public interest for honest, upright, truthful,
trustworthy and prudent elected representatives. The
judicial mechanism in Article 62(1)(f) of the Constitution
grants a fair opportunity and adequate remedy for relief
to a candidate under challenge to vindicate himself.
Therefore, the permanent incapacity of a candidate for
election under Article 62(1)(f) of the Constitution is not
an arbitrary, excessive or unreasonable curtailment of
his fundamental right under Article 17(2) of the
Constitution.23 (Emphasis supplied)

The upshot of the reproduced excerpt is that it is because “[t]he judicial

mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity

and adequate remedy for relief to a candidate under challenge to

vindicate himself” that “permanent incapacity of a candidate for election

under Article 62(1)(f) of the Constitution is not arbitrary, excessive or

23
Ibid, Paragraph 35
 unreasonable curtailment of his fundamental right under Article 17(2) of

the Constitution.” The necessary consequence of this is that where such

“fair opportunity and adequate remedy for relief to a candidate under

challenge to vindicate himself” is not available, permanence/perpetuity

cannot be attributed to a disqualification under Article 62(1)(f) of the

Constitution. This Honourable Court, it is respectfully submitted, has yet

to consider the effect of this ruling on declarations made in the original

Constitutional Jurisdiction, especially under Article 184(3) of the

Constitution where no right to appeal, present evidence or cross-examine

witnesses is available.

dd) Even otherwise, this Honourable Court’s jurisprudence concerning Article

62(1)(f) requires further clarification. In the case titled Nida Khuhro v.

Moazzam Ali Khan24, for instance, this Honourable Court concluded as

follows: -

“28. On the basis of material available on record, we

are satisfied that:

(i) Respondent No.1 concealed his own assets as well as

those of his dependent minor children in his nomination
papers;

(ii) He filed a false affidavit, which in itself entails

serious legal consequences. A detailed inquiry or
investigation is not required in the matter in view of
admission of non disclosure by Respondent No.1. It is
trite that admitted facts need not be proved;

(iii) We are also satisfied that there was no bona fide

mistake, mathematical error or clerical mistake in
preparing and filing the nomination papers and the
affidavit filed in compliance of the order of this Court in
Speaker, National Assembly of Pakistan's case ibid; and

(iv) The explanation offered for the admitted

concealment/ misdeclaration neither appeals to reason
nor logic. We have unfortunately been unable to persuade
ourselves to accept it.

24
2019 SCMR 1684
 After considering the arguments advanced by learned
counsel for the parties, having carefully examined the
record and the case law cited at the bar, we find that the
judgment of the Election Tribunal dated 15.01.2019 is
unsustainable and runs contrary to the ratio decidendi of
the law enunciated by this Court in the judgments cited
above. Therefore, for reasons recorded above, this
Appeal is allowed and the impugned judgment dated
15.01.2019 passed by the Election Tribunal of the High
Court of Sindh, Bench at Sukkur is set aside. In
consequence, the Election Petition bearing No.S-01 of
2018 filed by the Appellant is accepted. It is declared that
nomination of Respondent No.1 (Moazzam Ali Khan) was
invalid. As a result, his declaration as a Member of the
Provincial Assembly of Sindh issued vide notification
dated 07.08.2018 is annulled. He shall immediately
cease to be a member of the Provincial Assembly. The
Election Commission of Pakistan is directed to hold fresh
elections in the constituency (PS-11 Larkana-II) in
accordance with law.”25 (Emphasis supplied)

Despite this ruling, however, the respondent’s disqualification was treated

to be limited to the extent of the election under consideration.

Subsequently, the Respondent contested bye-election and was returned to

the Provincial Assembly of Sindh.

ee) The decision is Nida Khuhro v. Moazzam Ali Khan 26 was rendered

subsequent to the Sami Ullah Baloch judgment. In light of these two

judgments, which on the face of it are at odds with one another, it is

unclear what the effect of a declaration under Article 62(1)(f) is.

ff) In light of this lack of clarity, the Petitioners/Appellants seek this

Honourable Court’s indulgence in conclusively determining the duration

of a disqualification under Article 62(1)(f) of the Constitution.

gg) That the objections raised by the Assistant Registrar in the Impugned

Order, are wholly illegal and contrary to the law on the subject. The

learned Assistant Registrar is, therefore, not correct in passing the

25
Ibid, Paragraph 28
26
Ibid
 Impugned Order with the objections raised. The basis thus not being legal,

the Impugned Order is liable to be set aside and the Constitutional Petition

filed by the Petitioners/Appellants needs to be entertained and registered

for regular hearing on merits.

PRAYER
It is, therefore, respectfully prayed that this Appeal may
very kindly be accepted, the Order of the Assistant Registrar
(Civil-II) dated 29-01-2022 may kindly be set aside and
direction be issued that the Constitutional Petition filed by
the present appellants may graciously be entertained,
numbered, registered and placed before the Court for its
disposal on merits.

Drawn & Settled by Filed by

Mansoor Usman Awan Anis Muhammas Shahzad

Advocate Supreme Court Advocate on Record

Dated: ___-02-2022