Law:

Section:

(a) Constitution of Pakistan (1973)-- ----Arts. 41(2), 62 & 63---Presidential election---Candidate for President election was a sitting Member of the Senate--- "Qualification" and "disqualification" being separate concepts, it is Art.62 of the Constitution alone which is to be applied by the Returning Officer at the time of scrutiny of nomination and Art.63 of the Constitution would have no application--Principles---Article 41(2) makes a reference to qualifications required by a candidate but does not by itself provide disqualification for contesting the election of President---Returning Officer, therefore, acted in excess of jurisdiction in judging the candidature of the candidate on the basis of Art.63(1)(g) of the Constitution, which had absolutely no applicability, holding that candidate was disqualified from being a Member of Parliament and. therefore, from contesting the election to the office of the President. The Constitution of Islamic Republic of Pakistan (1973) by itself does not, as such, provide any qualification which must be possessed by a candidate to the office of President of Pakistan. But Article 41(2) of the Constitution makes a reference to qualification required by a candidate to the Parliament. Article 41 of the Constitution does not by itself provide disqualifications for contesting the election to the office of President but adopts the method of what is commonly known as legislation by reference and provides that a candidate to the Office of President must be qualified to be a Member of the National Assembly. Article 41(2) as it stands today is in the same form as it was enacted in the original Constitution in the year 1973 while Articles 62 and 63 have been amended/substituted from time to time subsequently. The key words in Article 41(2) of the Constitution in the present context are 'qualified to be'. Qualification and disqualification are not interchangeable terms and have separate and distinct connotations. While qualification means possession of those attributes which entitle a person to be considered for some post or office, disqualification means loss of those attributes by certain art or omission. To put it in other words,…

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