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Petitioner: Election Tribunal SHAHID NABI MALIK VS Respondent: MUHAMMAD ISHAQ DAR and 5 others
Court Name: Election Tribunal Judge(s): Mian Allah Nawaz Title: Election Tribunal SHAHID NABI MALIK vs MUHAMMAD ISHAQ DAR and 5 others Case No.: Election Petition No,5 of 1994 Date of Judgment:1995-09-28 Reported As: 1996 MLD 295 Result: Order accordingly
Judgment ' This Election Petition, under Article 225 of the Constitution of Pakistan (1973) read with section 52 of the Representation of the People Act, 1976 by Mr. Shahid Nabi Malik, calls in question the notification of success of Mr. Muhammad Ishaq Dar/respondent No,1 as a returned candidate from the seat of National Assembly NA-95, Lahore. The Notification was published in the official Gazette on 9th December, 1993. 2. The controlling facts, according to the petition, are that by-election of NA-95, Lahore was scheduled on 2-12-1993. The petitioner as well as five respondents/namely Mr. Muhammad Ishaq Dar/ 1st respondent, Mr. Almas Haider Kazmi/2nd respondent, Syed Qaisar Shah/3rd respondent, Aqeel Ahmad/4th respondent, Nawab Amber Shahzada/5th respondent filed their nomination papers before the Returning Officer on 30-10-1993. The Returning Officer, on the date of scrutiny, found all the nomination papers in order as none of the nominated candidate raised objection. Meanwhile, the petitioner became aware that first respondent had been serving as a full-time Vice-Chairman of Pakistan Investment Board (shortly referred to as P.I.B.) from 15-9-1992 to 19-4- 1993 and so he was ineligible to file his nomination papers within the terms of Article 63(1)(k) of the Constitution of Pakistan and section 99(1-A)(k) of the Representation of the People Act, 1976 (hereinafter described as Act) as 2 years have not elapsed between the date of his resignation and filing of nomination papers. Feeling so, the petitioner preferred an application before the Chief Election Commissioner under section 103 of the Act for seeking declaration that first respondent was ineligible to contest Election. Besides this, he filed Constitution petition (W.P. No,16274/93) which was admitted to full hearing by the High Court on 24-11-1993. This was not the end of the matter. Malik Mehraj Khalid and Raja Abdul Sattar too joined the battle and filed separate writ petitions/challenging Mr. Muhammad Ishaq Dar right to contest the Election. These petitions were
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filed on 27-11-1993 and were admitted to hearing. On 30-11-1993 High Court was pleased to issue an order that the result of Election of NA-95, Lahore shall not be announced till the decision of the afore noted petitions. The first respondent also did not lag behind. He, too, called in question the right of the petitioner to contest election by lodging an application before the Chief Election Commissioner. The afore stated two applications were dealt with by the Chief Election Commissioner who, by order, dated 30-11-1993, dismissed the application filed by first respondent and adjourned the hearing of the application moved by the petitioner to 20-12-1993. Feeling dissatisfied from the order, dated 30-11-1993 passed by Lahore High Court in W.P. No, 16274 of 1993, the first respondent went to Supreme Court and the Hon'ble Supreme Court was pleased to modify the impugned order and directed the Election Commission to announce the result of the Election. It was, however, observed that the result so announced shall be subject to the decision of the Constitution petitions pending before the Lahore High Court. The Election was held on scheduled date and the following results were declared: (1) Mr. Muhammad Ishaq Dar 39483 Votes (2) Mr: Shahid Nabi Mali 23825 Votes (3) Mr. Almas Haider Kazmi 103 Votes (4) Mr. Aqil Ahmad 49 Votes (5) Syed Qaiser Shah 43 Votes (6) Nawab Amber Shehzada 26 Votes. ' and so the impugned result was notified in the official Gazette. Feeling dissatisfied, the petitioner had filed the instant election petition on 22-1-1994. 3. The petition was contested by first and fifth respondents. None others filed any reply. First respondent also filed recriminations petition/alleging therein that the petitioner was a bank- defaulter and so he was neither 'Amin' nor sagacious and so he was disqualified to contest election. On the pleadings of the parties the following issues were framed: ISSUES: (1) Whether respondent No, 1 was in service of Pakistan with effect from 15-9-1992 to 19-4-1993 and he was so ineligible to file his nomination papers on the relevant date, if so, what is its effect? OPP (2) Whether the petitioner was disqualified to contest the Election for the reasons mentioned in recrimination notice? (3) Whether disqualification of the respondents, if any, was so notorious as to attract the principle of throwing away of votes? OPP (4) Relief. ' No other issue was claimed. It is pertinent to mention over here that issues were framed with the consent and active participation of the learned counsel for the contesting parties. In order to substantiate his case, the petitioner relied upon P.W.1 Ashfaq Hussain/Section Officer, Cabinet Division, Islamabad, P.W.2 Riazul Haq, Deputy Secretary, Prime Minister Secretariate, Islamabad, P.W.3, Ch. Saeed Ahmad, Deputy Director, Pakistan Investment Board, P.W.4 Sh. Rafique Ahmad, Advocate P.W.5, Badarul Islam Butt, P.W.6 Bakhat Geer Ahmad, and P.W.7 Sadiq Hassan, P.W.8 Malik Shabbir Hayat, Advocate P.W.9 Ch. Muhammad Aslam Gill and, Mr. Shahid Nabi Malik/petitioner himself as P.W.10. The petitioner placed reliance upon the following documents.-- {{TABLE}} Sr. Mark Description. No, 1. PR Affidavit of petitioner/Shahid Nabi Malik. 2. PD Notification No,TA-14(2)/92-PIB dated 15-9-1992 regarding appointment of respondent as Vice-Chairman, P.I.B.
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3. PA Notification No,4-10/92-Min-I, dated 22-4-1993 regarding acceptance of resignation of respondent No,1. 4. PB Gazette Notification No,4-10/92-Min-I, dated 30-8-1992 regarding constitution of P.I.B. 5. PE Letter No, U.O. No,2(45)/92-E&F-I dated 6-10-1992 in respect of establishment and structure of P.I.B. 6. PC Summary for Prime Minister regarding establishment of P.I.B. Bearing No, Cab. Div. U.O. No,4-10/92-Min-I, dated 25-101992. 7. PF Creation of Posts/Postings of Officers in P.I.B. Bearing No,P.M. Sec. U.O. No,2(45)/92 E&F II, dated 11-2-1993. 8. PG Creation of Posts/Postings of Officers in P.I.B. No, U.O. No,3556/AS E&F/92 dated 12-11-1992. 9. PQ Affidavit of Ch. Muhammad Aslam Gill dated 21-11-1993. 10. PL Affidavit of Ch. Sadiq Hassan, dated 22-11-1993. 11. PM Affidavit of Shabbir Hayat, Advocate 12. PN Advertisement saying: Daily Musawat dated 1-12-1993. 13. 14. PO PP Ditto Advertisement saying:" Daily Khabrain dated 30-11-1993. 15. PE News item published in Daily Musawat, dated 25-11-1993, saying: 1 16. PF/1 News item published in Daily Musawat dated 27-11-1993 saying: 17. PJ News item published in Daily Musawat dated 1-12-1993 saying: .8. PK News item published in Musawat, dated 2-12-1993 saying: 19. PP News item published in daily Khabrain, dated 30-11-1993 saying: 1V PW Office Memorandum bearing No, 3-3/92-Min. I, dated 21. 22. F G 7-2-1993 in respect of appointment of Chief Executive Pakistan Investment Board. Lrr News item saying: Daily Musawat, dated 25-11-1993. News item saying: Daily Musawat, dated 27-11-1993. Lt. / Grl 23. H Advertisement saying: Daily Musawat, dated 1-12-1993. - C,L-- Gal 24. I Advertisement saying: Daily Musawat. 90 25. J News item saying: Daily Musawat, dated 1-12-1993. 26. K News item saying: Daily Musawat. {{TABLE}}
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4. In order to prove his case, the first respondent examined R.W.1, Mr. Khalid Javed (former Finance Secretary), Government of Pakistan, R.W.2, Iftikhar Malik, Deputy Secretary, Ministry of Finance, R.W.3, Mukhtar Haider Shah, Deputy Secretary, Ministry of Industries R.W.4, Ch. Saeed Ahmad, Deputy Director, Board of Investment, R.W.5 Imtiaz Ahmad Sahibzada, Cabinet Secretary, Government of Pakistan, R.W.6 Kh. Riaz Mahmood and R.W.7 Abdul Waris Malik. In addition to it, the first respondent tendered into evidence his own affidavit, copy of Foreign Investment Advisory Services, copy of Income Tax Return. 5. The petition was argued by the learned counsel for the parties with their usual remarkable dexterity, industry and legal acumen. The learned counsel for the petitioner as well as the learned counsel for first respondent tendered their written notes. None, however, had entered appearance on behalf of respondents Nos.2, 3, 4 and 6. They had, therefore, been proceeded against ex parte. Nawab Ambar Shahzada/respondent No,5 was represented by Mr. Irshadullah Chattha, Advocate, who, however, never showed keen interest in proceedings of the petition. Neither he produced any evidence nor he argued the case. The arguments advanced by the learned counsel for the petitioner can be conveniently summarized as below: ' Firstly; that Mr. Muhammad Ishaque Dar, was appointed as full-time Vice-Chairman of P.I.B. On 15- 9-1992 vide Notification No,TA-14(2)/92- PIB(Mark 1PD); that first respondent served as Vice- Chairman up to 22-4-1993 when he submitted his resignation which was accepted on the same day; that P.I.B. Which was part and parcel of Ministry of Industries and was subject to control of the Prime Minister Secretariat. On the strength of this circumstance, it was argued that first respondent had been in service of Pakistan within the terms of Article 260 of the Constitution and two years had not elapsed from the date of his resignation and the date of filing of nomination papers and so that Returning Officer had accepted his nomination papers without any lawful authority. In this view it was suggested that the election of first respondent was wholly void, ab initio and merited to be declared as such. Reliance was placed on Nasrullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299, Syeda Abida Hussain v. Returning Officer 1993 MLD 2489 and Syeda Abida Hussain v. Tribunal for NA. 69 PLD 1994 SC 60. ' Secondly; that first respondent was never administered oath within the terms of Article 92(2) of the Constitution. According to the learned counsel under Article 92(1) of the Constitution the President appoints the Federal Minister and Ministers of State from the amongst the Members of Majilis-e-Shoora (Parliament) on the advice of the Prime Minister. This Article further requires that the holder of office of Minister of State shall take oath in the form set out in the Third Schedule and is to seek election to Majlis-e-Shoora within a period of six months, if at the time of his appointment, such Minister was not Member of Parliament. According to the learned counsel, there was a common ground between the parties that neither Mr. Muhammad Ishaque Dar took oath nor he secured his election within the meaning of the Constitution. In this view, it was suggested that Mr. Muhammad Ishaque Dar did not enjoy the status of a Minister of State and so was within the services of Pakistan under Article 260 of the Constitution. ' Thirdly; that the first respondent was obviously in services of Pakistan and this aspect of the case was known to voters who cast their votes in his favour. According to the learned counsel, the Lahore is the heart of Pakistan and the area of NA-95 is the heart of Lahore as all the known educational institutions are located in this constituency. This being the position, according to the learned counsel, the disqualification of first respondent was so well-known and so well-explained to the voters; that the principle of throwing away of the votes was clearly attracted to this case. In order to fortify his contention the learned counsel for the petitioner relied upon the following cases: ' Abdul Ghani v. Mumtaz Hussain 1986 SCMR 1701, Saleh Muhammad v. Muhammad Riaz PLD 1962 Lah. 68, Allah Yar Khan v. Sardar All PLD 1968 Lah. 319, Sanaullah v. Election Tribunal PLD 1966 Lah. 97, Zafarullah Khan v. Muhammad Shafi PLD 1976 Lah. 302, Lal Muhammad v. Muhammad Usman 1975
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SCMR 409, Haji Muhammad v. Ali Bakhsh Shah 1987 CLC 841, Saheb Mia Chaudhry v. Election Tribunal PLD 1966 Dacca 439, Rashid Ahmad Rehmani v. Mirza Barkat Ali PLD 1968 SC 301, Raja Afzal v. Ch. Manzoor Illahi PLD 1975 Lah. 1278, Saeed Hassan v. Pyar Ali Alana PLD 1976 SC 6. ' On these facts, it was argued that the election of first respondent be set aside and the petitioner, in his place, be declared as elected. ' Fourthly; that the Recrimination petition filed by the first respondent was barred by time in view of section 66 of the Act. Explaining further, it was submitted that the petitioner came up for hearing for the first time on 21-3-1994, but the first respondent did not file any Recrimination petition which was filed on 20-11-1994. So, the Recrimination petition was barred by time. ' Fifthly; that the petitioner was 'Amin', 'sagacious; that had filed review petition against the decree of the Banking Court dated 21-8-1993; that the Review petition is still sub judice. On these facts, it was suggested that the petitioner could not be treated, on the basis of simple bank-decree, as not sagacious and not Amin. 6. Mr. Muhammad Akram Sheikh, Advocate the learned counsel for respondent No,1 replied the above contentions as follows: ' Firstly; that Article 63(1) of the Constitution had various clauses out of which clauses (d), (e), (k) and (o) were relevant. According to him all these clauses were to be given harmonious construction and expression `office of profit' used in clause (o) ibid, was to be read into clauses (d), (e) and (k) ibid. According to the learned counsel the sum and substance of service of Pakistan was salary or fee and until and unless it was shown that the office of Vice-Chairman of P.I.B. Was remunerated, that post did not fall within the ambit of civil service as defined in Article 260 of the Constitution. Reliance was placed on Kanta Kathuria v. Manak Chand AIR 1970 SC 694 and K.B. Rohamare v. Shankar Rao AIR 1975 SC 571. On the strength of the above, it was vehemently argued that neither the petitioner received any salary nor any fee and he was serving the country out of love and affections. So, he was not disqualified within the terms of Articles 63(1), (d), (e) and (k) of the Constitution. ' Secondly; that vide order, dated 19-12-1992, the first respondent was conferred the status of Minister of State with effect from 15-9-1992 and so the first respondent did go out of mischief of Article 260 ibid. ' Thirdly; that the learned counsel for the petitioner had made a statement that he would not like to cross-examine respondent No,1 and the affidavit filed by him became a substantial piece of evidence wherein it was claimed that first respondent was not in the services of Pakistan at the relevant time of filing the nomination papers. ' Fourthly; that section 52 of the Act had been declared contrary to injunction of Islam and so it stood erased from the Statute Book. Help was sought from the decision of Federal Shariat Court reported as Muhammad Salahuddin v. Government of Pakistan PLD 1990 FSC 1. ' Fifthly; that the word 'office' was of a wide amplitude and of varied meanings. It, however, carried an element of permanency. According to the learned counsel the office of Vice-Chairman, P.I.B., was neither permanent nor salaried. So, this office did not fall within the terms of Article 260 nor Article 63(1), clauses (d), (e), (k) and (o) of the Constitution; ' Sixthly; that even if it was assumed (without conceding) that first respondent suffered from disqualification to contest election, his disqualification was such that it needed determination by the Court of competent jurisdiction and so the petitioner could not be declared successful in place of first respondent. Reference was made to Muhammad Afzal v. Manzoor Illahi PLD 1975 Lah. 1276; Syed Saeed Hassan v. Pyar All PLD 1976 SC 6 and Rashid Ahmad v. Barkat Ali PLD 1968 SC 301. ' Seventhly; that the Election Petition' was filed on 241-1994 and so it was not filed within the time as prescribed by section 52 of the Act.
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' Eighthly; that the petitioner has not correctly verified the election petition so it merits rejection. Reliance was placed on Muhammad Ibrahim v. Muhammad Arif Sardar 1986 CLC 2050, Sardar Khalid Nawaz v. Manzoor Ahmad Wattoo 1987 CLC 1167, Tariq Mahmood Bajwa v. Muhammad Afzal Sahi 1994 CLC 1366 and Mayor Zafar Ahmad Hiraj v. Dr. Khawar Ali Shah 1988 CLC 1289. ' Ninethly and lastly; that the petitioner was a bank defaulter; that he had pocketed the money of Bank and so he could not be termed as 'Amin' within the meaning of Article 62 of the Constitution. 7. Having penned down the facts, the circumstances of the case and the arguments of the parties, I now proceed to deal with the points for determination. Before dealing with Issue No,1, I find it essential to note three well-known 'and well-established principles pertaining to interpretation of the Constitutional provisions: Firstly; that the Constitution is a living document. It reflects the ideological aspiration of the people and is made through, their will It is a basic document which lays down the, framework of distribution of the powers and subjects between Federation and Federating Unit and between three limbs of the State, i,e, Legislature, Executive and Judiciary. Being the life and soul of the country and being the main fountain of authority, it is to be interpreted liberally, and is to be saved from cosmetic, circumscribed and pedantic constructions. It is to be construed organically and with purposiveness. It is not only document of a past, present but is of a future, so it is to be interpreted in a manner to meet the exigencies of the State, the changing conditions of socio-religious and economic, dynamics of the State. See New Electronics (Pvt.) Ltd. v. Collector of Customs (Appraisement) PLD 1994 Kar. 286, Arif Iqbal Hussain Bhatti v. Federation of Pakistan PLD 1994 Lah. 220 and Aisha Spinning Mills Ltd. v. Federation of Pakistan 1995 PTD 493. ' Secondly; that object of incorporating a definition clause in a statute is generally to declare what certain expressions or words embodied in the statute shall mean. The definition clause is declaratory in nature and ordinarily applies to expressions used in statute. Normally, the definition clause controls the meaning of words in a given statute, The Punjab Cooperative Bank Ltd. v. The Republic of Pakistan and 128 others PLD 1964 SC 616, Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and 3 others PLD 1965 SC 434 and Sh. Ihsanul Haq Piracha v. Wasim Sajjad and others PLD 1986 SC 200. In the latter case, while interpreting the definition clause, speaking for the Bench, his Lordship Justice Shafiur Rehman, as he then was, said:--- "It follows from the above discussion that where profession or professional has been defined, that definition fully governs the situation. Where it does not, and resort has to be had to its ordinary plain meaning then it should be borne in mind that it is 'vague and neither static nor rigid' in what it conveys. Having found a place in the Constitution itself it is necessary that it should retain its flexibility and adaptability. The scheme of the Explanation under consideration appears to be to emphasize in Explanation (c) professional qualification, its recognition and experience in a specialized area of knowledge, and practice in that particular specialization. In contradistinction to it there is no mention of qualification in Explanation (b). It talks of professional competence and experience and expertise for administering or managing a unit. Expert has been defined in Black's Law Dictionary as 'one who is knowledgeable in specialized field that knowledge being obtained from either education or personal experience....One who by habits of life and business has particular skill in forming opinion on subject in dispute'. Experience and expertise and absence of use of the word qualification in Explanation (b) emphasizes the practical side rather than the academic. We, therefore, agree with the finding that 'a person without professional qualification but who is otherwise professionally competent, which professional competence is nationally or internationally recognized can become a `technocrat' if he fulfils the other conditions in the definition of `technocrat' " ' Thirdly;
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that our Constitution is built upon the doctrine of separation of powers. To legislature is allocated the function of making laws, to Executive is given the task of implementing the laws made by the Legislature; the Judiciary is assigned the task of interpreting and construing the laws within the framework of Constitution. 8. Guided by these principles, I, now, take up Issue No,1. This issue raises question pertaining to construction of Articles 62, 63, 91, 92 and 260 of the Constitution. While Article 62 prescribes the positive qualification required for contesting election to seat of the Parliament, Article 63 lays down the negative disqualification. Any person who falls within any sub-clause of Article 63 ibid, is disqualified from seeking Membership of Parliament. Article 260 is an interpretation clause. It defines the various expressions used in the various provisions of the Constitution and states that unless the context of the given provision otherwise requires, the meaning given to that word in this clause, shall apply. As the meaning of expression 'service of Pakistan' embodied in this Article is of decisive importance, I will rust venture to deal with this expression in detail. This expression contained in Article 260 is as under: " 'Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlise-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman -or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly." ' This word/expression came up for consideration before superior judiciary on number of occasions in different factual background. In Nawabzada Nasrullah Khan v. Ghulam Mustafa Khar PLD 1977 Jour. 299, this expression was examined by his Lordship Justice Dr. Nasim Hassan Shah as a Member of Election Commission. Mr. Ghulam Mustafa Khar had been appointed Special Assistant to the Prime Minister on 16-6-1977. He continued to hold this office till July, 1977 when Martial Law was proclaimed and he, so, was ousted from that office on 18-8-1977. He filed his nomination papers as candidate for election to National Assembly from Constituency No,128, Muzaffargarh-II which was accepted by Returning Officer vide order dated 20-8-1977. Feeling aggrieved, Nawabzada Nasrullah Khan another candidate from the same Constituency, challenged the order by filing an appeal on the premises that Ghulam Mustafa Khar had been occupying the office of Special Assistant to Prime Minister and was so disqualified from being a candidate to contest election. Having examined the relevant law, the learned Member of Election Tribunal upheld the contention and found that Mr. Ghulam Mustafa Khar had been occupying a post in service of Pakistan. It will be extremely advantageous to reproduce paragraph 16 of the judgment:-- "The upshot is that the respondent has been in the service of Pakistan as the said expression is to be understood in its ordinary sense as distinct from the special meaning given to it is Article 260 of the Constitution. The interpretation of the learned counsel for the respondent that the meaning assigned to the said expression should also be given to it while interpreting sub-clause (4) of clause (b) of Article 10(2) of the Order cannot be accepted as it would amount to nullifying the effect of Explanation I to the said sub-Article and treating it as redundant, which cannot be done. The interpretation placed on sub-clause (4) of clause (b) of Article 10(2) of the Order avoids the startling results apprehended by the counsel for the respondent and full effect must, therefore, be given to it. On so doing the respondent must be held to be disqualified as he was in the service of Pakistan and a period of two years has not elapsed since he ceased to be in such service.........
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' The same question came up for examination again in Mst. Sardar Bibi v. Finhas and others PLD 1980 Jour. 43. The Local Councils Election Authority Punjab held that respondent No,1, who was in service as work-charged, was…
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