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Petitioner: Mian MUHAMMAD SHAHBAZ SHARIF VS Respondent: Ch. MUHAMMAD ALTAF HUSSAIN, JUDGMENT
Court Name: Lahore High Court Judge(s): Malik Muhammad Qayyum Title:Mian MUHAMMAD SHAHBAZ SHARIF vs Ch. MUHAMMAD ALTAF HUSSAIN,
JUDGMENT
Reported As: PLD 1995 Lahore 541 Result: Petitions dismissed Judgment JUDGMENT ' By a short order announced on 6-7-1994, Writ Petitions Nos.3693/94, 3377/94 and 3440/94 involving the same controversy were dismissed leaving the parties to bear their own costs. This judgment furnishes detailed reasons in support of that order. 2. The petitioner in W.P. No,3693/94, Mian Muhammad Shahbaz Shard is the Leader of the Opposition in the Punjab Provincial Assembly, while the other two Writ Petitions bearing Nos.3377/94 and 3440/94 have been filed by Syed Ali Raza Abidi and Mr. Iftikhar Hussain, who are citizens of Pakistan residing in the Province of Punjab. All of them feel aggrieved of the appointment of Ch. Muhammad Altaf Hussain, respondent No, 1 as Governor of Punjab by the President of Pakistan vide notification dated 20-3-1994. 3. The factual background in which this controversy arises is that on the resignation of Mian Muhammad Azhar as Governor of Punjab on 25-4-1993, Ch. Muhammad Altaf Hussain, respondent, No 1 was appointed as Governor of the Province. He continued to hold that office till 19-7-1993 when he resigned. He was re-appointed to the same office by the President of Pakistan on 26-3-1994. This appointment has been challenged by the petitioners in these petitions primarily on the ground that having held an office in the service of Pakistan, Ch. Muhammad Altaf Hussain was not qualified to be a Member of National Assembly and thus could not be appointed as the Governor. 4. On behalf of the petitioner, Mr. Muhammad Akram Sheikh, Advocate has elaborated that under Article 101(2) of the Constitution of Islamic Republic of Pakistan, 1973, only a person qualified to be elected as a Member of the National Assembly can be appointed as Governor but as respondent No, 1 has been in service of Pakistan within a period of two years of his re-appointment as Governor
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of Punjab, he was disqualified from being elected as a Member of the National Assembly and, therefore, from being appointed as the Governor. He maintained that to be eligible for being elected as a Member of the National Assembly, a person must not only hold the qualifications enumerated in Article 62 of the Constitution but should not also suffer from any of the disqualifications provided in Article 63 and the two Articles must read together and not in isolation of each other. He emphasised that clause (k) of Article 63 clearly debarred a person, who had remained in service of Pakistan within a period of two years from being elected as Member of the National Assembly. 5. Mr. Muhammad Akram Sheikh, Advocate heavily relied upon the definition of service of Pakistan appearing in. Article 260 of the Constitution to contend that all services, posts and offices in connection with affairs of the Federation or a Province except those specifically excluded therefrom by the Constitution itself fall in the service of Pakistan. According to the learned counsel the Goyernor was an agent of the President and executive Head of the Province and as such the office held by him related both to the 'affairs of the Federation and the Province and was thus in service of Pakistan. In support of this argument he cited Mr. Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 and Mr. Zulifqar All Bhutto v. The State PLD 1978 SC 40. 5. According to the learned counsel for the petitioner, the other disqualification from which respondent No,1 suffered was that he was not an Ameen and righteous person as required by Article 62 of the Constitution as held by the Full Bench of this Court in Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595. 6. Mr. Sharif ud Din Pirzada, Advocate and Mr. Shahzad Jehangir, Advocate appearing on behalf of respondent No, 1, however, maintained that the office held by the Governor cannot be considered to be an office in the service of Pakistan but can more aptly be described as a Constitutional office, the holder of which was not in the service of Pakistan. The learned counsel urged that the Constitution visualises two types of offices namely, the Constitutional offices, like that of President, Governor etc. And offices in service of Pakistan. He explained that Constitutional offices are creatures of the Constitution and terms and conditions of such offices are also provided by the Constitution unlike the later kind of offices which are set up by or under a statute or an administrative instrument which also lay down their terms and conditions of service. Reference was made by the learned counsel to Article 275 of the Constitution as also to the case of Nawabzada Nasarullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299. 7. As regards definition of 'service of Pakistan' in Article 260 Mr. Sharif ud Din Pirzada, Advocate emphasised that Article 260 is in the nature of an interpretation clause which by its very wording and on the accepted principles of construction of statute is not of universal application but its applicability was subject to the context and stands excluded in the event of any repugnancy. Reliance in this respect was placed by the learned counsel on Iftikhar Ahmad and others v. President, National Bank of Pakistan and others PLD 1988 SC 53 and Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699. It was urged that on proper construction of the Constitution, holders of Constitutional offices cannot held to be in the 'service of Pakistan' merely on account of the definition given in Article 260 which was not applicable. So far as the exclusion of certain offices from the definition in Article 260 of the Constitution, the learned counsel explained that those offices were excluded by making amendments in the Constitution from time to time in order to remove doubts which had arisen. 8. It was next argued by Mr. Sharif ud Din Pirzada, Advocate that Article 101(2) of the Constitution only makes to qualifications and not disqualification of a Member of the National Assembly applicable in the case of Governor and as the Constitution itself had prescribed qualifications
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separately from disqualifications, on reasonable hypothesis could Article 63 dealing with disqualifications be pressed into service for determining whether or not a person was qualified to be appointed as a Governor. He referred to the cases of G.D. Karkara v T.L. Shevde and others AIR 1952 Nagpur 330, Atlas Cycle Industries Ltd. Sonepat v. Their Workmen AIR 1962 SC 1100, Malik Hamid Sarfraz v. Federation of Pakistan and another PLD 1979 SC 1991 in support of this submission. It may also be stated to the credit of the learned counsel that he brought to the notice of this Court the judgment of the Supreme Court in the. Earlier case of Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 and distinguished the same. 9. Mr. Shahzad Jehengir, Advocate supported Mr. Sharif ud Din Pirzada Advocate and submitted that the fact that Article 260 of the Constitution does not specifically exclude some of the Constitutional offices like President, Governor, Judges of the Superior Courts- and Chief Election Commissither from the definition of 'service of Pakistan' was not conclusive and did not furnish a basis for assuming that all other offices were covered by the definition. He reiterated that in any event, the disqualifications enumerated in Article 63 cannot be taken into consideration for determining whether or not a person was qualified to be appointed as a Governor. In support of this submission, the learned counsel relied upon Government of Pakistan v. Syed Akhlaque Hussain PLD 1965 SC 527, Shahidullah Kazi v. The Additional Deputy Commissioner (Development) and Election Tribunal, District Faridpur PLD 1969 Dacca 868, M/s. Pervez Industrial Corporation v. M/s. New Lahore Transport Co. And 3 others PLD 1975 Kar. 88, Hargovind Pant. v. Dr.Raghukul Tilak and others AIR 1979 SC 1109 and Black's Law Dictionary page 1241, as also Dr. Chandra Bhan Singh v. State of Rajasthan and others AIR 1983 Rajasthan 149. Relying upon Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160, it was also urged that provisions being penal in nature should be strictly construed and 'disqualifications' not clearly spelt out by the Constitution should not be made applicable inferentially. 10. He next contended that reliance of the petitioner's learned counsel on Article 62(f) of the Constitution was wholly misplaced as nothing has been brought on record to show that respondent No,1 suffered from `disqualifications' of the nature mentioned therein. He explained that respondent No,1 was not a party to the case in which the Full Bench delivered the judgment reported as Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595 and in any case there was nothing in that judgment to sustain this contention. 11. Mr. Abdus Sattar Najam, learned Advocate-General, Punjab referred to various Articles of the Constitution and submitted that the office of the Governor was not an office or post in the service of Pakistan. He in particular referred to Articles 103 and 109 of the Constitution. 12. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General for Pakistan apart from reiterating the contentions of the other learned counsel for the respondent and also relied upon Hargovind Pant. v. Chancellor, University of Rajasthan and others AIR 1978 Rajasthan 72 and Hardwari Lal v. Ch. Bhajan Lal and others AIR 1993 Punjab & Haryana 3 in support of these submissions. 13. From the respective contentions of the learned counsel for the parties, the questions which arise for determination in this case are:-- (1) Whether the office of the Government is an office in the service of Pakistan? (ii) Are the 'disqualifications' enumerated in Article 63 of the Constitution applicable for finding out whether a person was qualified to be appointed as Governor under Article 101(2) of the Constitution? (iii) Whether Ch. Muhammad Altaf Hussain, respondent No,1, suffers from disqualification of the nature described in Article 62(f) of the Constitution? ' These questions, I must confess are not only of Constitutional importance but are also not free form difficulty. The valuable assistance rendered by the learned counsel for the parties, especially,
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Mr. Sharif ud Din Pirzada, Mr. Shahzad Jehangir and Mr. Muhammad Akram Sheikh, Advocates as also the learned Law Officers has been of great help in resolving these controversies. 15. The main burden of the argument of the petitioner's learned counsel on the first proposition was that in Article 260 of the Constitution, 'service of Pakistan' has been defined as a service, post or office in connection with the affairs of the Federation or the Province and the office of the. Governor clearly falls within the ambit of this definition. The learned counsel sought to draw strength from the fact that therein offices which otherwise would have fallen within the mischief of this provision, have been specifically taken out of the definition by making amendments in the Constitution which according to the learned counsel was clearly indicative of the intent that all other officers, posts and services connected with the Federation and the Province are in the service of Pakistan. 16. The argument on the face of it appears to be attractive but does not stand to scrutiny on deeper analysis. As pointed out by Mr. Sharif ud Din Pirzada with admirable clarity; the Constitution itself draws distinction between 'Constitutional Offices' and Offices in 'service of Pakistan'. The offices like that of the President, Governor, Judges of the superior Courts, Chief Election Commissioner and the Auditor-General of Pakistan are creatures of Constitution and do not exist independently of the Constitution which itself prescribes terms and conditions of those offices. On the other hand, the offices in 'service of Pakistan' are neither created by the Constitution nor are their terms and conditions prescribed by it. The two kinds of offices by their very nature are different and have been separately dealt with by the Constitution itself and cannot be equated. To illustrate, reference may be made to Chapter 1 of Part III of the Constitution deals with the office of the President of Pakistan, Chapter 1 of Part IV with Governors, Chapters 1 and 3 of Part IV with the Judges of Superior Courts and Chapter 1 of Part VIII to the Chief Election Commissioner which lay down not only the qualifications for appointment but also their terms and conditions. This is in clear contradistinction of Article 240 of the Constitution which provides that the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in case of services and posts in connection with the Federation by or under the Act of Parliament and in case of services and posts in connection with the affairs of a Province by or under the Act of Provincial Assembly. If the argument of the learned counsel for the petitioner is accepted that the holder of Constitutional- offices like the Governor are also deemed to be in service of Pakistan under Article 240 of the Constitution, the appointment to and the conditions of service even in respect of those offices can be regulated by law which could not certainly be the Constitutional intent. 17. In 63' Am Jur 2d, Vol. 10, at page 638, distinction between Constitutional offices and other offices has been drawn in the following word:-- ' Article 16. Constitutional offices.--A Constitutional office is one created by the United States Constitution or by a State Constitution, as distinguished from an office created by Statute or from an office which, like that of Notary Public, has existed in nearly all countries for centuries. ' Article 17. Distinction between Constitutional office and Statutory office.-- Constitutional offices differ in many ways from offices created by Statute. The legislature has full control over the latter, whereas its power over Constitutional offices is limited. It cannot abolish a Constitutional office, nor can it change such an office, except as expressly permitted by the Constitution itself. Generally, therefore, it has no power to change the title of a Constitutional office. The Constitution may even prohibit legislative interference with all offices in the cities of the state of a character known at the time of the adoption of the Constitution, irrespective of whether such offices were then known by the same or by different names. It is also to be seen that while the holders of Constitutional offices are required to take oath prescribed by the Constitution itself before entering their offices, it is not so in the case of offices in service of Pakistan. It is therefore difficult to agree with the learned counsel for the petitioner that all
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public offices irrespective of the nature of the offices should be deemed to be offices in the service of Pakistan. 18. The distinction becomes further clear from Article 275 of the Constitution of Islamic Republic of Pakistan, 1973, the relevant part of which reads as under:-- "Constitution in office of persons in Service of Pakistan. Etc.---(1) Subject to the Constitution and until law is made under Article 240 any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him under the Interim Constitution of the Islamic Republic of Pakistan immediately before that day. (2) Clause (1) shall also apply in relation to a person holding office immediately before the commencing day as -- (a) Chief Justice of Pakistan or other Judge of the Supreme Court, or Chief Justice or other Judge of a High Court; (b) Governor of a Province; (c) Chief Minister of a Province; (d) Speaker or Deputy Speaker of the National Assembly or a Provincial Assembly; (e) Chief Election Commissioner; (f) Attorney-General for Pakistan or Advocate-General for a Province; (g) Auditor-General of Pakistan. 19. Although clause (1) of Article 275 in comprehensive terms provided that all those persons who were in service of Pakistan shall continue to hold their offices on coming into force of the Constitution of Islamic Republic of Pakistan, 1973 yet a separate provision was made in respect of holders of offices enumerated in clause (2) the reason being that the Makers of the Constitution were fully aware that the holders of Constitutional offices were not in service of Pakistan and, were, therefore, not covered by clause (1). If, as has been argued by the learned counsel for the petitioner, persons holding Constitutional offices are also in service of Pakistan, there was no occasion to make a separate provision for them and in that event clause (2) would be rendered completely redundant. It is well-established principle of interpretation which applies greater force to a Constitutional document, that each and every word contained therein must be given a definite meaning and no surplusage or redundancy can be attributed to the Constitution-makers. 20. This view finds support from the opinion of Dr.Nasim Hassan Shah, J. (as he then was) in the case of Nawabzada Nasarullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299 wherein it was observed that:-- "A reference to the provisions of the Constitution reveals that the existence of three kinds of posts and offices is visualised by it namely:-- (i) Offices and posts created expressly by the terms of the Constitution, such as Prime Minister, Ministers, Chairman of the Senate, Speaker, Chief Justice and Judges of the Supreme Court and High Courts. Members of the Legislature etc. Whose modes of appointments, tenure and removal is fully dealt with therein. They may be referred to as holders of Constitutional Offices; (ii) Posts created by any act of Parliament or Provincial Legislature.--A separate chapter in the Constitution (Part VII-Chap.I) deals with the subject of Service of Pakistan and Article 240 contained therein provides that no person can be a Member of the Service of Pakistan unless there is a law regulating the appointment to and conditions of service. The relevant part of this provision reads as under:-- `240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined--- (a) in the case of the services of the Federation posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament; and
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(b) (iii) Posts created under the authority of the powers conferred to the Televant authorities by the law (referred to in item No, (ii) above).' ' In its ordinary sense the expression 'service of Pakistan' would, therefore, refer to the holders of posts and offices who are created under items (ii) and (iii) above and would not normally include persons referred to in item (i) above, viz., holders of Constitutional offices whose services are not visualised in Article 240 of the Constitution, which is the specific provision in the Constitution dealing with the subject of services. This view is fortified on reference being made to Article 275 of the Constitution." 21. Mr. Muhammad Akram Sheikh, Advocate submitted that the cited judgment was delivered by an Election Tribunal and has, therefore, no force. Although the judgment of the Tribunal is not binding on this Court but exposition of law and interpretation of the Constitution by an eminent Judge of this Court, who rose to be the Chief Justice of Pakistan is certainly entitled to great respect and has to be given due weight. 22. It may also be stated that the judgment of the Election Tribunal was chellenged by Mr. Ghulam Mustafa Khar by filing a Constitutional Petition (W.P. No,2208 of 1977) but that was dismissed by a Full Bench of this Court (See Ghulam Mustafa Khar v. Election Commissioner of Pakistan and 2 others PLD 1977 Lah. 1437. Mr. Muhammad Akram Sheikh submitted that as the Full Bench did not deal with the issue now in controversy, it should have deemed to have disapproved the reasoning of the Election Tribunal to that extent. This argument on the face of it is wholly untenable. There is nothing in the judgment of the Full Bench from which it can even remotely be inferred that any of the findings given by the Tribunal have been disapproved. On the other hand, as the Constitutional petition was dismissed by the Full Bench and the order of the Election Tribunal was maintained, its value stands enhanced. 23. The question as to whether holders of Constitutional offices are in service of Pakistan was also considered by the Election Tribunal comprising of two learned Judges of this Court in Syeda Abida Hussain v. Returning Officer and others 1993 MLD 2489 in which it was observed that:-- " Holders of the Constitutional and elective posts, created by the Constitution, do not fall in the category of persons in the service of Pakistan but since the appellant was not holding an office created by the Constitution and dealt with by it, she would be deemed to be in the service of Pakistan falling within the mischief of Article 63(k) of the Constitution of Pakistan." ' The appeal against that judgment was dismissed by the Supreme Court of Pakistan (see Syeda Abida Hussain v. Tribunal for NA-69 Jhang-IV and 2 others PLD 1994 SC 60). 24. Mr. Muhammad Akram Sheikh, learned counsel for the petitioner has himself relied upon the pronouncement of Supreme Court in Syeda Abida Hussain's case supra contending that the expression 'service of Pakistan' cannot be equated with the civil servant and though a person may not be a civil servant within the meaning of Civil Servants Act, 1973 yet he can be in service of Pakistan. 25. There cannot be any cavil with the argument advanced by the learned counsel for the petitioner which, however, has no relevance in the present case. It is true that a person may not be a civil servant within the meaning of Civil Servants Act, 1973 but may be in the service of Pakistan as is the case with an Ambassador. However, the fact remains that in such cases also appointments to and terms and conditions of offices are determined by or under the Act of appropriate legislature or by rules framed pursuant to Article 240 of the Constitution which is not so in respect of holders of Constitutional offices. Apart from the fact that Syeda Abida Hussain's case did not deal with the holder of a Constitutional office and is, therefore, clearly distinguishable, on a closer analysis of the said judgment, it will be seen that one of the reason for holding that Syeda Abida
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Hussain was in service of Pakistan as an Ambassador was that she was governed by Rules of Service applicable to civil servants framed pursuant to Article 240 of the Constitution. Similarly, the case of Mahboob Khan and 242 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 5 others (1991 PLC (C.S.) 415) has no relevance nor does it advance the case of the petitioner. Moreover, in that case also it was observed that the terms and conditions of persons in service of Pakistan were to be determined by or under the Act of the Parliament or the Provincial Assembly as mandated by Article 240 of the Constitution which shows that the determinating factor, as to whether or not a person is in the service of Pakistan, is as to whether his terms and conditions are determined by law made under Article 240 of the Constitution. 26. In arguing that the Governor holds an office in the service of Pakistan, the main thrust of the petitioner's learned counsel was that as Article 260 itself has excluded certain offices from being in the service of Pakistan by making specific exclusions, all other offices in connection with the affairs of the Federation and the Province are offices in the service of Pakistan. 27. Having considered this contention, I find myself unable to agree with the learned counsel for the petitioner. On the other hand, the argument of Mr. Sharif ud Din Pirzada, Advocate that these amendments were declaratory and clarificatory in character and were made in order to remove doubts or ambiguities with respect to holder of those offices as and when occasion arose appears to be unexceptionable. This conclusion is strengthened by the fact that amendments were made at different points of time as and when the necessity for doing so was felt. For example, the Attorney-General was excluded from the definition by the Constitution (Second Amendment) Act, 1974, the Advocate-General by the Constitution (5th Amendment) Act, 1976, the Chairman and Members of Law Commission, Chairman and Member of the…
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