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P L D 1989 SC 61

FEDERATION OF PAKISTAN
V/S
AITZAZ AHSAN AND ANOTHER

(a) Constitution of Pakistan (1973), Articles 5, 51, 185 & 218:

Articles 5(2), 51(2) & 185(3) — Representation of the People Act (LXXXV of 1976), Section 33 [as amended by Representation of the People (Third Amendment) Ordinance (XXVII of 1988)] — Leave to appeal granted against the judgment of High Court (whereby the provisions of Ordinance Nos. XXVI and XXVII of 1988 requiring the production of an Identity Card before the issuance of ballot paper to a voter at the forthcoming general election had been held to contravene the provisions of Article 51(2) of the Constitution on the ground that these constituted a clog on the entitlement of a person to vote, who was otherwise qualified under the said provision, in order to consider questions of general public importance calling for the interpretation of Constitutional provisions contained in Articles 5(2) & 51(2) of the Constitution and the relevant laws which required authoritative decision of the Supreme Court. [pp. 63-64]A & B

Per Muhammad Haleem, C.J.
Per Aslam Riaz Hussain, J.
Per Muhammad Afzal Zullah, J.
Per Nasim Hasan Shah, J.
Per Abdul Kadir Shaikh, J.
Per Shafiur Rahman, J.
Per Javid Iqbal, J.
Per Ghulam Mujadid, J.
Per Usman Ali Shah, J.
Per Ali Hussain Qazilbash, J.
Per Naimuddin, J. – Agreeing –
Per Saeed Saood Jan, J. – Contra. –

Articles 51(2), 5(2), 218(3) & 185(3) — Representation of the People Act (LXXXV of 1976), Section 33 [as amended by Representation of the People (Second Amendnet) Ordinance (XXVI of 1988) and Representation of the People (Third Amendment) Ordinance (XXVII of 1988)] — National Registration Act (LVI of 1973), Sections 8 & 11 — Supreme Court Rules, 1980, O. XXXIII, Rule 6 — Leave to appeal — Prayer for suspension of impugned order during pendency of appeal — High Court order declaring provisions of Ordinance requiring the production of an Identity Card before the issuance of a ballot paper to a voter at the election as violative of Article 51(2) of the Constitution, suspended till the hearing and decision of the appeal on the ground that until a law is finally held to be ultra vires for any reason, it should have its normal operation and for the reason that balance of convenience was also in favour of petitioner (Government of Pakistan) in so far as the voters who were able to establish their identity through the Identity Cards should alone be allowed to cast their votes which would prevent large scale bogus voting which may, but for such requirement, take place and it will also lend greater credibility to the election process in the country by ensuring the compliance of Constitutional requirement of Article 218(3) that the election was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against — Supreme Court observed that the preparation and the issuance of the identity cards to applicants who had already applied within due dates should continue unhampered as was undertaking given by the Attorney-General in the High Court and repeated before Supreme Court. [p. 64]B

Articles 51(2), 5(2), 218(3) & 185(3) — Representation of the People Act (LXXXV of 1976), Section 33 [as amended by Representation of the People (Second Amendment) Ordinance (XXVI of 1988) and Representation of the People (Third Amendment) Ordinance (XXVII of 1988)] — National Registration Act (LVI of 1973), Sections 8 & 11 — Supreme Court Rules, 1980, O.XXXIII, Rule 6 — Electors would be entitled to be given their ballot papers to cast their votes if they produce identity cards issued to them under National Registration Act, 1973, but if they do not have, then they can produce any other proof about their identity to the satisfaction of the Presiding Officer — Production of identity card as the sole mode of proof of the Identity of an elector is not a Constitutional requirement — When the right to recieve the ballot paper is made dependent solely upon the production of identity card, it would tantamount to adding a new qualification in Article 51(2) which cannot be done by a sub-Constitutional legislation and which would have the effect of disfranchising seven per cent of the electors who admittedly do not possess identity cards — Such qualifications can be added only through Constitutional amendment. [p.65]C & D

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