The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per: Malik Muhammad Qayyum, J.

(a) Constitution of Pakistan (1973) Arts. 62, 63 & 101(2)

Although much can be said in support of both the view but, I am inclined to agree with the points of view putforth by Mr. Sharif ud Din Pirzada with his usual skill and excellence that disqualification’s mentioned in Article 63of the Constitution cannot be taken into consideration while determining whether or not a person was qualified to be appointed as a Governor. Article 101(2) of the Constitution on its plain wording speaks of a person qualified to be elected as a Member of the National Assembly.[p. 557] H

The next argument of the petitioner’s learned counsel that both Articles 62 and 63 must be given effect to while determining the eligibility of the appointee to the office of the Governor proceeds on mistaken assumption that lack of qualifications is the same thing as disqualification. However, there is no warrant for such assumption. While qualification means possession of certain necessary elements and attributes, disqualification’s arise when a person is deprived or divested of some of the qualifications.[p. 557]I

The question as to whether ‘qualification’ would include ‘disqualification’ has been subject-matter of various cases, some of which have taken the view advocated by Mr. Muhammad Akram Sheikh. The preponderance of opinion, however, appears to be that want of qualification and disqualification are not interchangeable expressions and a person not possessing requisite qualifications cannot be said to be disqualified. The distinction appears to be that a person is said to be not qualified when the lacks necessary attributes. He is however, disqualified when he is divested of any of the qualifications.[p. 558]J