The Constitution of Pakistan, 1973 Developed by Zain Sheikh

BEGUM SHIREEN BAHAR CHEEMA

V/S

FEDERATION OF PAKISTAN, CABINET DIVISION AND OTHERS

Per Ch. Mushtaq Ahmad Khan, J.

(a) Constitution of Pakistan (1973), Articles 51, 106 and 265

I have considered the arguments addressed by the learned counsel for the parties and have gone through the record as well as various Constitutional provisions and the case-law referred to at the Bar by both the learned counsel.  Article 51 and106 of the Constitution of Islamic Republic of Pakistan, 1973, unequivocally provide that the period of 10 years for which the seats for women are reserved shall commence from the day of commencement of the Constitution of 1973. [p. 832] A

Hence, I hold that period of 10 years as prescribed under the provisions of Article 51 and 106 of the Constitution has already expired as the period shall commence w.e.f. 14-8-1973. [P. 833] B

Even from another angle, the petitioner is not entitled to grant of any indulgence in exercise of the discretionary jurisdiction of this Court.  As during the general elections held in the year 1990, no election was held to fill up the reserved seats for women, as the view of the Election Commission was that holding of election to the reserved seats for women is no longer a Constitutional and legal requirement, the matter was taken to the Election Commission on the judicial side in case of Memoona Sibghat PLD 1991 Journal 76 wherein it has been held that the elections of 1990 being fourth general election and the period of ten years having expired election to the reserved seats for women cannot be allowed.  This order was never challenged either by the petitioner or any other citizen of the country.  This factual and legal position, therefore, appears to have been accepted by everyone including the petitioner as well as all the political parties of the country.  Present petition has been filed yesterday when the election machinery is in full gear and only days are left for filing of the nomination papers and a very short time is left for polls.  The petition appears not to be bona fide and at any rate is barred by the principles of laches.  In the above circumstances, no writ can be issued in view of certain observations made in case of Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 at page 416 of which report it has been held as under:—

“In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate two attacks on matters connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by means of an election petition.  It is also of utmost consideration that in the case of two attacks on a matter connected with the election proceedings there is likelihood of there being two inconsistent decisions; one given by the High Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature.  Again the words except by an election petition in Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mode in which it can be called in question.  It is, therefore, that the Constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge.  The purpose is not far to seek as in all democratic Constitutions such as is ours the Legislatures have an important role to play, and, therefore, it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at the intermediate stage. [p. 834, 835] E & F