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Official Citation: 2024 IHC 194016
Court / Jurisdiction: Islamabad High Court
Parties: M B Javed Awan vs Muhammad Tahir Nizami etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 194016. In this matter between M B Javed Awan and Muhammad Tahir Nizami etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Miangul Hassan Aurangzeb) AUTHOR JUDGE: Honourable Mr. Justice Miangul Hassan Aurangzeb DECISION DATE: 02-DEC-2024 CASE NO: Intra Court Appeal-373-2023 CITATION: 2024 IHC 194016 PARTIES: M B Javed Awan VS Muhammad Tahir Nizami etc LAW / SECTION: - SUBJECT: Writ, REMARKS: ICA in W.P. 2705/2023 Election Other (SB), [ Muhammad Tahir Nizami - VS -FOP through Secretary of NHSR&C, Islamabad, etc. ] ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
I.C.A.No.373 of 2023 M.B. Javed Awan and another Versus Muhammad Tahir Nizami and others
Date of Hearing: 06.11.2024. Appellants/Petitioners by: M/s Muhammad Sh oaib Shaheen and Muhammad Umair Baloch , Advocate s in ICAs No.373 and 374 of 2023 as well as for respondents No.13 and 14 in W.P.No.3176/2024 and in C.M.No.2895/2024 in W.P.No.2967/2024 and C.M.No.2990/2024 in W.P.No.3117/2024 Ch. Imtiaz Ahmed and Qazi Jahanzeb Gul Qureshi, Advocates in ICAs No.382 to 386 of 2023 as well as respondent No.11 in W.P.No.3176/2024 and respondent No.3 in W.P.No.2967/2024 M/s Mudassar Khalid Abbasi and Shah Khalid, Advocates in W.P.No.2967/2024 Mr. Qaiser Abbas, Adv ocate in W.P.No.3117/2024 and respondent No.1 in ICA No.386/2023 M/s Sher Afzal Khan Marwat, Haider Khan, Ch. Osama Tariq, Advocates in W.P.No.3176/2024 and respondent No.1 in ICA No.373/2023
Respondents by: Mr. Azmat Bashir Tarar, learned Assistant Attorney-General, Mr. Ashfaq Ahmad, Deputy Director, Mr. Qamar Mehmood Chaudhry, Deputy Director (Legal) and Mr. Muhammad Aftab Dogar, Ministry of NHSR&C. M/s Shehryar Hassan and Saqib Nafees, Advocates along with Aamir Nadeem Ramay, Registrar, NCH. M/s Humb le Murad Siddiqui , Advocate and Barrister Masood Siddiqui, for respondent No.5 in W.P.No.3176/2024. ___________________________________________________________________________
MIANGUL HASSAN AURANGZEB, J :- Through this judgment, we propose to decide intr a Court appeal s No.373, 374, 382, 383, 2 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
384, 385 and 386 of 2023 as well as writ petitions No.2967, 3117 and 3176 of 2024 since they entail certain common questions of law and facts. 2. Through the said intra Court appeals, the appellants impugn the judgmen t dated 23.10.2023 passed by the learned Judge -in- Chambers whereby writ petition s No.2705, 2734, 2737, 2742, 2743, 2744 and 2745 of 2023 were allowed by declaring the appellants (who were respondents in the said writ petitions) to be ineligible to contest the election of the Council in terms of Section 9(3) read with Section 9(5) of the Unani Ayurvedic and Homeopathic Practitioners Act, 1965 (“ the 1965 Act ”) and Rule 15 of the Unani Ayurvedic and Homeopathic System Medicine, Rules, 1980 (“the 1980 Rules”). 3. Through writ petition No.2967/2024, the petitioner, Muhammad Tahir Nizami, impugns notice dated 20.09.2024 published in the Daily Jang by the National Council for Homeopathy (“NCH”) whereby a fresh schedule for the el ection of the Council was announced. Through writ petitions No. 3176/2024 and 3117/2024, the petitioners seek reliefs similar in nature to the one sought by the petitioner in writ petition No.2967/2024. 4. The facts essential for the disposal of the instant appeal are that through a notice p ublished in the newspapers on 20.07.2023 by NCH, the schedule for the election of the members of the Council was issued . As per the said schedule, the last date for the filing of the nomination papers was 27.08.2023 , whereas the election was to be held on 20.09.2023. The existing members of the Council had also filed their nomination papers to contest the election . Against their candidature, Muhammad Tahir Nizami ( “Mr. Nizami”) had filed objections before the Returning Officer. The primary ground taken in the said objection was that since the term for which the members of the Council were to hold their office had not expired, they were not eligible to contest the election on the basis of the conjoint reading of Section 9(3) and 9(5) of the 1965 Act. The said objection was 3 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
rejected by the Returning Officer vide order dated 28.08.2023 which was assailed by Mr. Nizami in an appeal filed on 30.08.2023. On 07.09.2023, Mr. Nizami filed writ petition No.2705/2023 and vide ad- interim order dated 0 8.09.2023, the learn ed Judge -in-Chambers restrained the Returning Officer from issuing a final list of eligible candidates. Vide judgment dated 23.10.2023, the said writ petition along with the connected petitions listed in the annexure to the said judgment were allowed and it was ordered that the Returning Officer “will proceed to issue a revise d schedule of the next steps to be followed for purposes of convening the election in accordance with the rules from the stage from which the process was suspended by virtue of the ord er of this Court dated 12.09.2023.” The said judgment has been assailed by the appellants in intra Court appeals No.373, 374 and 382 to 386 of 2023. 5. Intra Court appeal No.373/2023 was take n up for hearing on 31.10.2023 on which date this Court suspended the election process until the next date of hearing. On 25.07.2024, the Deputy Attorney - General for Pakistan , on behalf of the Ministry of National Health Services, Regulations and Coordination (“Ministry of NHSR&C”) filed application (C.M.No.2373/2024) p raying for the interim order dated 31.10.2023 to be vacated. In the said application, it was pleaded that on 10.07.2024, a decision was taken by the Federal Cabinet to appoint an Administrator for NCH and to require the Attorney - General for Pakistan to hav e the injunction issued by this Court vacated. 6. On 30.07.2024, this Court issued notice to the respondents on the said application with the direction to ensure representation on the next date of hearing , i.e. 05.08.2024 . This Court had also recorded the contention of the Assistant Attorney -General that the injunctive order ought to be vacated for the reason that the tenure for which the members had been elected in the last election had 4 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
already expired , and that a fresh election could not be held due to the injunctive order passed by this Court. 7. Vide order dated 05.08.2024, this Court vacated the interim order dated 31.10.2023. For the purposes of clarity, the said order is reproduced herein below:- “Learned counsel for the appellants has agreed to the submissions of the learned Assistant Attorney -General that the tenure for which the elections had taken place, has already expired and that a schedule for fresh elections has been announced in which the appellants would be at liberty to participate. He ho wever, submitted that the provisions of the Unani Ayurvedic and Homeopathic System Medicine Rules, 1980 have to be interpreted. These provisions in the Statute would be interpreted in due course. Since the schedule for fresh elections has been announced, for this purpose, the interim order dated 31.10.2023 is vacated.”
8. On 22.08.2024, the Ministry of NHSR&C submitted a summary for the Prime Minister soliciting an approval for the submission of the summary to the Federal Cabinet through circulation so as to obtain approval for (i) the appointment of Mr. Ashfaq Ahmad as the Returning Officer for holding election of the Council and (ii) the date of the election of the Council to be fixed in the last week of October 2024. After the Prime Minster accorded app roval to the said summary, the Ministry of NHSR&C submitted another summary dated 29.08.2024 to the Cabinet for approval of the very same proposals made in the above me ntioned summary to the Prime Minister. The Cabi net considered the said summary and on 11.09.2024 approved the proposals made therein. Thereafter vide notification dated 19. 09.2024 issued by the Min istry of NHSR&C, 30.10.2024 was fixed as the date for the election of the Council. 9. On 20.09.2024, NCH issued a schedule for holding the election process afresh. As per the schedule published in the newspapers on 20.09.2024, the last date for the filing of the nomination papers was 09.10.2024. The said election schedule has been assailed by Mr. Nizami in writ petition No.2967/2024, which was taken up for hearing on 07.10.2024, on which date this Court ordered that all steps taken pursuant to the said election schedule would be subject to the final 5 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
outcome of the said petition. Thereafter, writ petitions No. 3117 and 3176/2024 were filed which were s imilar in nature to writ petition No.2967/2024. 10. On 28.10.2024, after hearing the contesting parties at some length, this Court ordered that in order to preserve the lis, the election process be stayed. Furthermore, it was ordered that writ petitions No.3176 and 3117 /2024 as well writ petition No.2967/2024 be fixed along with intra Court appeal No.373/2023 and connected appeals. 11. Learned counsel for the appellant submitted that Section 13 of the 1965 Act does not disqualify a sitting member of the Council from being re-elected prior to the expiry of his term; that Section 9(3) of the said Act is not couched in negative language and therefore a sitting Member of the Council is eligible for re -election to the Council; that the learned Judge -in-Chambers could not have imposed a restriction on N CH to re-commence the election process from the stage when it was stopped due to the injunctive order passed on 08.09.2023 in writ petition No.2705/2023 ; that the provisions of the 1965 Act or the Rules made thereu nder do not prevent NCH from issuing a fresh election schedule after a date for the election is fixed by the Federal Government; that the Division Bench of this Court during the proceedings in intra Court appeal No.373/2023 was cognizant of the fresh sched ule having been issued and on this basis the injunctive order dated 31.10.2023 passed in the said appeal was vacated; that after the impugned judgment dated 23.10.2023 was passed, numerous members have been registered by the Council who cannot be disenfran chised or prevented from being candidates in the election for which a fresh election schedule has been issued; and that since the term for which the appellants were elected as Members of the Council has already expired, they cannot be prevented from being candidates in the election which is held after the expiry o f their term. Learned counsel 6 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
for the appellants prayed for the appeals to be allowed and for the impugned judgment dated 23.10.2023 to be set-aside. 12. Learned counsel for the private respondents in intra Court appeal No.373/2023 and connected appeals as well as the learned counsel for the petitioners in writ petition No.2967/2024 and connected petitions submitted that in terms of Section 9(3) and (5) of the 1965 Act, a sitting Member of the Counc il is not eligible for re - election; that since Section 9(5) was inserted in the 1965 Act through Ordinance No.LXI of 2002, it has to be strictly construed and enforced; that in the past, elections to the Council had been held after the expiry of the term f or which the Members were earlier elected but such practice was in stark violation of Section 9(5) which requires the election of the Members of the Council to be mandatorily held at least three months prior to the expiry of the prescribed tenure of the Co uncil; that this Court vide judgment dated 18.10.2022 passed in writ petition No.2238/2018 and connected matters required the Federal Government to pass necessary directions for inter alia initiating the process of elections “strictly in accordance with la w well within time ;” that in terms of Section 9(5) of the 1965 Act elections ha d to take place at least three months prior to the expiry of the prescribed tenure of the Council; and that after the impugned judgment was passed, a new date of the elections w as fixed and from the list of eligible candidates, the names of the sitting Members of the Council were removed. Learned counsel for the private respondents as well as learned counsel for the petitioners prayed for the instant appeal to be dismissed. 13. We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal s as well as writ petitions are set out in sufficient detail in pa ragraphs 2 to 10 above and need not be recapitulated. 7 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
14. The 1965 Act was enacted to regulate the qualification s and to provide for the registration of practitioners of Unani Ayurvedic and Homeopathic system s of medicine. Section 5 of the said Act provides that the National Council for Homeopath y shall consist of inter alia 11 members to be elected from amongst themselves by registered and listed Homeopaths, of whom five shall be from Punjab, three from Sindh, two from Khyber Pakhtunkhwa and one from B alochistan. In addition to the said members, Section 5(c) provides that two members are to be elected from amongst themselves by the teachers of recognized institutions of Homeopathy. 15. The 1980 Rules were made by the Federal Government in exercise of the powers conferred by Section 26 of the 1965 Act. Rule 15 of the 1980 Rules provides that “the term of office of the members of the Council shall be five years, and the term of office of a member elected or nominated to a casual vacancy caused by the resi gnation, death or otherwise of a member shall be the remaining period of the term of the member in whose vacancy he was elected or nominated.” Under Rule 18 , which is relevant to this case, the Federal Government is to notify the date of the election. The said Rule reads thus:- “Whenever an election to the Council is to be held under Section 4 or Section 5, the Federal Government shall, by notification in the official Gazette, specify a date , which shall not be less than three months preceding the date on which the term of the members of the Council is due to expire , on which such election shall be held and may appoint a Returning Officer for holding such election.” (Emphasis added) 16. In terms of the said Rule, the Federal Government is to specify the date on which the election is to be held and such date cannot be less than three months preceding the date on which the term of the members of the Council is due to expire. Furthermore, the Federal Government is also to appoint a Returning Officer for holdin g such election. In exercise of the said power, the Federal Government vide 8 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
notification dated 17.07.2023 fixed 20.09.2023 as the date for the elections to the Council. Since it is not disputed that the term of the existing members of the Council was due to expire on 15.11.2023, the said date fixed for the elections was in conformity with the requirements of Rule 18 ibid, i.e. the date of the election was on a date not less than three months preceding the date on which the term of the members of the Council was due to expire. 17. Since the existing members of the Council ha d also submitted their nomination papers for participation in the elections prior to the expiry of their tenure, Mr. Nizami filed objections to their candidature before the Returning Off icer. Mr. Nizami’s objections were premised on Section 9(3) and Section 9(5) of the 1965 Act. In order to appreciate the thrust of the objections, it would be appropriate to reproduce Section 9 herein below in its entirety. “9. Term of office of members.– (1) the members of the Council shall be nominated or elected, as the case may be, in such manner and for such term as may be prescribed by Rules. (2) Every member of the Council shall, subject to the other provisions of this Act and as may be prescribed by Rules, hold office for the prescribed term and cease to hold office at the expiry thereof, and (3) Members shall be eligible for re -nomination or re-election to the Council on the expiry of the prescribed term. (4) If a vacancy in the office of Presid ent, Vice -President or a member occurs during the prescribed term through death, resignation, disability or otherwise, the vacancy shall be filled in accordance with the provisions of this Chapter. (5) The election or nomination of the members of the Coun cil shall be held at least three months prior to the expiry of the prescribed tenure of the Council and expenditure on election shall be borne by the respective Council and if, at any time, the Council ceases to exist on expiry of its prescribed tenure, al l powers and functions of the Council shall, till constitution of new Council or for a period of one year, be exercised and performed by such person or authority as may be appointed by the Federal Government in this behalf, as if such person or authority were the Council.” (Emphasis added)
18. The date of the elections fixed vide notification dated 17.07.2023 was not just in conformity with Rule 18 ibid but also Section 9(5) which was inserted in the 1965 Act through Ordinance 9 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
No.LXI of 2002. The question which the learned Judge -in-Chambers was to determine in writ petition No. 2705/2023 and connected petitions was whether the members of the Council whose term had not expired on the date fixed for the filing of the nomination papers could validly become cand idates in the elections to the Council. Since Section 9(3) makes the members of the Council eligible for re - election “on the expiry of the prescribed term” and since the term for which the members of the Council (whose candidature was objected to by Mr. Ni zami) had been elected had not expired when they filed their nomination papers, the learned Judge -in-Chambers held that they were not qualified to contest the elections. Since the judgement of the learned Judge -in-Chambers was based on strict construction of Section 9(3) and (5) of the 1965 Act and Rule 15 of the 1980 Rules, we have not been persuaded by the learned counsel for the appellants to interfere with the same. As regards the direction made by the learned Judge -in-Chambers in the impugned judgment that the election process is to proceed “from the stage from which the process was suspended” by virtue of the interim order dated 12.09.2023, such direction in our view is also in consonance with the law. Had he order ed for a fresh election schedule to be issued it would not have been without harm to the mandate under Section 9(5) and Rule 18 ibid. 19. It ought to be borne in mind that after the judgment dated 23.10.2023 was announced NCH, vide notification dated 27.10.2023 , issued the list of eligible can didates for the elections. This list did not include the candidates who were members of the Council when they filed their nomination papers. Vide another notification dated 27.10.2023 issued by the Ministry of NHSR&C, 14.11.2023 was fixed as the new date o f the elections. An altogether new election schedule was not announced by NCH, and correctly so. The elections could not be held on 14.11.2023 as the Division Bench of this Court had suspended the process of the election vide ad -interim 10 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
order dated 31.10.2 023 passed in intra Court appeal No.373/2023. The circumstances in which the said ad -interim order was vacated by the Division Bench this Court have been referred to in paragraphs 5 to 7 above. 20. It subsequently came to the fore that NCH , on 20.09.2024, had issued an altogether new election schedule . This Court called upon the Ministry of NHSR&C and NCH to bring on record documents on the basis whereof the new election schedule was issued on 20.09.2024. They produced the summary dated 22.08.2024 submitted to the Prime Minister by the Ministry of NHSR&C seeking approval by the Prime Minister for submission of the summary to the Federal Cabinet proposing (i) for a new Returning Officer to be appointed as the earlier appointed Returning Officer had been posted out from the said Ministry, and (ii) for a date of the election to be fixed in the last week of October, 2024. After the said summary was approved by the Prime Minister, the Ministry of NHSR&C on 29.08.2024 submitted a summary to the Federal Cabinet se eking approval of the proposals mentioned herein above. The said summary was considered by the Federal Government which approved the proposals made therein on 11.09.2024. Thereafter, vide notifications dated 1 9.09.2024, a new Returning Officer was appointed and 30.10.2024 was fixed as the date for the elections. 21. There is nothing in the above referred summaries dated 22.08.2024 and 29.08.2024 seeking approval for a fresh election schedule to be announced. There is , however, mention of the order dated 05 .08.2024 passed by this Court in intra Court appeal No.373/2023 whereby this Court had vacated the earlier ad -interim order dated 31.10.2023 (whereby the process for the election was suspended). With the vacation of the said ad -interim order, NCH remained bound to commence the election process from the stage when it was stopped by virtue of the interim order dated 08.09.2023 11 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
passed by the learned Judge -in-Chambers in writ petition No.2705/2023. 22. The appellants have tried to pass odium onto this Court by asserting that it is the Division Bench of this Court which vide order dated 05.08.2024 vacated the earlier injunctive order dated 31.10.2023 (whereby the process of the elections was suspended) and thereby paved the way for a fresh election to be conduct ed. This Court, vide order dated 05.08.2024 , had not suspended the operation of the impugned judgment dated 23.10.2023. NCH was bound to show compliance with the said judgment by initiating the process of the elections “from the stage from which the process was suspended” by the learned Judge -in-Chambers. By issuing an altogether new schedule, NCH showed contumacious disregard to the directions in the said judgment. 23. The election schedule initially issued under which the last date for the filing of the n omination papers was 27.08.2023 was sacrosanct and could not have been undone or replaced by an altogether new schedule by NCH. The requirement under Rule 18 of the 1980 Rules for the elections of the Council to be held “not less than three months precedin g the date o n which the term of the members of the Council is due to expire” was reinforced by the insertion of Section 9(5) through Ordinance No.LXI of 2002 . On account of such insertion, it needs to be strictly enforced. It is an admitted position that o n the date when the appellants in intra Court appeal No.373/202 3 and connected appeals as well as the private respondents in writ petition No.2967/202 4 and connected petitions filed their nomination papers , they were indeed members of the Council as the te rm for which they were elected had not expired. Therefore, in terms of Section 9(3) and (5) of the 1965 Act, they were not eligible to contest the elections, and the learned Judge -in- Chambers correctly held that their nomination papers were wrongly accepted by the Returning Officer. The issuance of a new election 12 ICAs No.373, 374, 382 to 386 of 2023, W.P.s No.2967, 3117 & 3176 of 2024
schedule is not just a clear violation of Rule 18 and Section 9(3) and (5) but would have the effect of making the appellants (who were ineligible to be candidates in the election on the date when they first filed their nomination papers) to become eligible. Under the new schedule issued on 20.09.2024 , the last date for the filing of the nomination papers was 09.10.2024. By this…
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