Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Sh. IHSANUL HAQ PIRACHA VS Respondent: MR. WASIM SAJJAD AND OTHERS
Court Name: Supreme Court of Pakistan Judge(s): Mian Burhanuddin Khan, Zaffar Hussain Mirza, Shafi-ur-Rehman Title: Sh. IHSANUL HAQ PIRACHA vs MR. WASIM SAJJAD AND OTHERS Case No.:Civil Appeals Nos. 93 and 94 of 1985 Civil Appeal No. 93 of 1985 Civil Appeal
JUDGMENT
Reported As: PLD 1986 Supreme Court 200 Result: Appeals accepted Judgment JUDGMENT ' SHAFIUR RAHMAN, J.-Two appeals under section 48(3) of the Senate Election Act, 1975 (hereinafter referred to as the Act) arise out a judgment of the Election Tribunal, dated 2S.4-1985 whereby the two appellants were adjudged to be not technocrats as defined in Article 5 (i) (a) (iv) of the Houses of Parliament and Provincial Assemolies (Election) Order, 1977 President's (Post- Proclamation) Order No. 5 of 1977 (referred to as the Order) and hence not qualified to be elected to the Senate against the special seats. ' Elections to the Senate were held in the Punjab as provided under Article 59 the Constitution and the Act. Five special seats reserved for Ulema, technocrats and other professionals were required to be filled by members of the Punjab Provincial Assembly having single transferable vote under a' system of proportional representation. The two appellants aongwith twenty-nine others, all parties to the present proceedings contested. Ultimately the two appellants were amongst the five declared elected (not so far notified) to the Senate. The respondent No. 1 thereupon filed an election petition under section 34 of the Act challenging the election of the two appellants on the grounds that they were not "either a technocrat or a professional or Aalim" and hence not qualified to be elected to the Senate against these five reserved seats. He sought relief in the following terms :- "It is, therefore, prayed that election of the respondents Nos. 1 and 2 be declared void and the petitioner be declared elected to the special seat reserved for Aalims, technocrats and other professionals. It is further prayed that the notification of the result of the election as regards respondents Nos. 1 and 2 be stayed meanwhile."
---
## Page 2
' Mr. Ibsanul Haq Piracha appellant (hereinafter referred to as Appellant No. 1) resisted the claim of respondent No. 1 and on merits took up the stand that "the answering respondent besides being a businessm an has professional competency in business administration and co-operation and has also other qualifications bringing him within the definition of a technocrat". The details were said to be contained in the nomination form. He also stated that "the answering respondent being a technocrat was duly qualified to contest the election and this was the reason that no objection was raised at the time of filing of nomination form." ' Colonel (retired) Syed Mukhtar Hussain Shah appellant (hereinafter referred to as Appellant No. 2) also resisted that claim of the respondent and took up the plea that "the replying respondent falls in the category of Technocrat' and he based his claim on the following facts :- "The replying respondent is a Technocrat in the agricultural sector. He discovered seed of the best quality in the world, which is known after his name as Colonel Basmati It is famous for its longer grain and quality and superior to all other varieties in the world, including Bharat. He is a pioneer of this unique quality of Seed, which has been recognised nationally and internationally. In this respect, affidavits of highest authorities in the agriculture sector are enclosed with this written statement. The replying respondent is Member of the Government of Pakistan Agricultural Research Council (P. A. R. C). This is the top scientific council in the agricultural sector. He also recommended to the Government the formation of Dehi Markaz, a unique experiment for the Socioeconomic uplift of small farmers raising per acre production, employment of idle farm labour and thus De-Urbanisation of farm labour from over-populated cities: This has been nationally and internationally recognised. He is running it personally since 1965 and is visited regularly by Pakistani and foreign dignataries. This concept of his has neutralized the middlemen and has linked up production with Inputs, marketing processing and daily earnings through small dairies, small poultry units and village ponds fisheries, which has also got national recognition. He was the founder Member/Director of Agricultural Development Corporation of Pakistan. The replying respondent is a' Director of Federal Rice Council, Member of the Federal Integrated Rural Development {{BLURR PAGE}} Programme Advisory Council. He is member of the Federal Dairy Development Board ahd also Member of Federal Seed Council. Besides being Member of many other Federal and Provincial "r'1.1 Councils, he is Member National Advisory Council for Planning, comprising of only twelve experts in their fields from the entire country, Member State Bank Agricultural Credit Advisory Committee and was taken to Majlis-e-Shura as the only Agriculture 11'1"11Specialist and a Technocrat of the Province of Punjab. Thereplying respondent discovered "Colonel Basm.Ni- the world famous rice variety and introduced/produced on his Farm at Kot Mubarak. i1:i :He made immense contribution in increasing the agricultural produce thiricaion. His Farm at Kot Mubarak serves as modern agricultural noil3o4,init, where all the agricultural inputs, including loans for livestock and credits b: the .Cfp operator Repartment arc provided to the 0:growers to raise their per acre, production ahd get the maximum Iiiwri price for their produce. His Firm ahd Dan Markaz have been Models for visits of the foreign agricultural scientists and bni ,experts. He has over twenty years operational experience and he it has been managing the Dehi Markaz unit for these long years. It is further submitted that the replying respondent offered Debi Markaz Scheme to the Government in 1965 for adoption, which has been adopted by the Government. The replying respondent was the only agriculturist from the Punjab, who was nominated in Majlis-e-Shura Federal Council of Pakistan because of his technocracy in the agricultural sector. He is the author of a book on Rural Problems and Solutions, which has been recognised nationally and by foreign Governments. He is also administering and managing Dehi Markaz Unit at Kot Mubarak, which is his own creation and has now been adopted
---
## Page 3
by the Government. It is also submitted that the replying respondent's source of income is from this agricultural sector. ' For all the above mentioned reasons, the replying respondent is a Technocrat within the meaning of explanation to Article 5 of the P. P. 0. 1977." ' The following issues were framed by the Election Tribunal- "(1) Whether respondent No 1 (Sh. Haq Piracha) and respondent No. 2 (Col. (Retd.) Syed Nukhiar Hussain Shah) are not technocrats as defined in Explanation to clause (1) of Article 5 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977. {{BLURR}} airisv (2) Relief." ..L.Ipierri MC..2 ,tfoitidirlx3 Lrinorisiel {{BLURR}} ' The respondent did not lead any evidence. He relied on the particulars provided by the two appellants in their nomination papers and the Bic). Data appended therewith. Appellant No. 1 appeared as his own witness and produced the following witnesses :- "(1) Mian Abdul Hadi, Manager Imports/Exports and Acting Secretary, Ferozsons Laboratories Ltd. He stated about appellant No. 1 being the President and Chief Executive of the Company since 1968 up-to-date. (2) Muhammad Akhtar, General Manager, Mercantile Co-operative Finance Corporation Ltd., Sargodha. He stated that Appellant No. 1 has been functioning as Managing Director of Mercantile Co-operative Finance Corporation. (3) Mr. Mazhar Ali Khan a Chartered Accountant and General Manager, the Co-operative Insurance Society of Pakistan Ltd.. He stated that appellant No. 1 has been Director from July 1965 to 1969 and Senior Vice-President of the Society from March 1969 to January 1981 of the Co-operative Insurance Society of Pakistan. (4) Mr. Mushtaq Ahmad, Secretary Rawalpindi Chamber of Commerce and Industries. He stated that appellant No. 1 is elected President of the Chamber for year 1984-85 and "he has also been elected as President of the Chamber on several years." (5) Mr. Iqbal Saeed, Chairman, State Cement Corporation. He stated about his contacts with appellant No. 1 in diverse official capacities. (6) Sh Ishrat Ali Adviser to the President of Pakistan for Internal Trade and Business Co-ordination, Government of Pakistan from 9th March, 1981 to 25th February. 1985 He stated that he had known Appellant No. 1 for 16 years and had official contact with him concerning various organizations. (7) Mr. Hamid Ahmed, Joint Registrar, Cooperative Societies, Lahore, former General Manager, Rural Supply Co-operative Corporation. He stated that Appellant No. I had served and was serving various Co-operative Organizations i.e. (a) Mercantile Co-operative Finance Corporation Ltd. (b) Punjab Provincial Co-operative Bank Ltd. And (c) National Co-operative Union in various top level capacities. ' In the additional sheet attached to the nomination paper, the appellant No. I supplied the following particulars :- ' Sheikh Ihsanul Haq Piracha. Positions held : ' President : Rawalpindi Chamber otCommerce and Industry (1973-74, 1974-75, 1979-80, 1980-81, 1983-84 and 1984-85). : Ferozsons Laboratories Limited (Multi-divisioned Public Limited Manufacturing Co.) ' Chairman: National Insurance Co. Ltd., Karachi. : Exhibition Committee, Islamabad, which organized the 1st National Industrial Exhibition, 1984 inaugurated by General Muhammad Ziaul Haq, President of Islamic Republic of Pakistan. Another
---
## Page 4
similar Exhibition is being arranged for April, 1985. ' Managing : Mercantile Co-operative Finance Corporation Ltd., Sargodha. Director : National Rural Supply Co-operative Corporation Ltd., Lahore. : Punjab Provincial Co-operative Bank Ltd., Lahore. : PanGraphics Ltd., Islamabad (Printing and Publishing Co.) : Ferozsons Maritime Corporation Ltd., Karachi (Clearing and Shipping Co.) ' Member : Managing Committee, Federation of Pakistan-Chambers of Commerce and Industry. : Federal Appellate Committee, Film Censor Board, Government of Pakistan, Islamabad. : Central Committee, International Co-operative Alliance, Geneva (Switzerland). : Income-tax Advisory Committee, Rawalpindi. : Port Council, Karachi Port Trust, Karachi. ' Past. Sr. : Co-operative Insurance Society of Pakistan Ltd. Vice-President Past Vice : Municipal Committee, Bhera. Chairman Past : Punjab Provincial Assembly (1970-77). :Member and Works in Punjab Provincial Cabinet till imposition of Martial Law. : Senate, Punjab University. ' Leader : General Trade Delegation to R. 0. Korea & Japan (1981). Member : Pakistan Delegation to Peoples Republic of China under Leadership of Mr. Ilahi Bakhsh Soomro, Federal Minister of Industries, Government of Pakistan (1984). Repre- : I. C. A. At the 17th F. A. 0. Regional Conference for Asia and tented Pacific held in Islamabad (1984). Repre- : Federation of Pakistan Chambers of Commerce and Industry ; Sentative of : on National Committee UNIDO. : on Advisor Council of Export Guarantee Scheme. Attended : Stanford Research Institute Conference, Sydney 1970. : EXPO '70. Japan, 1970. : Various business tours of European, American and Arabian Countries. : 26th Congress I. C. A. Paris, 1976, I. C. 1. F."Conference Ohio, U. S. A. 1978. : I. C. A. Central Committee Meetings, Helsinki (1981)." Co-penhagen (1979), Rome (1982) and Hamburg (1984). ' The appellant No 2 also appeared as his own witness and produced the following witnesses :-- "(1) Dr. Amir Muhammad, Chairman, Pakistan Agricultural Research Council and Secretary to the Government of Pakistan Agriculture Research Division. He .Stated about the appellant No. 2 having been appointed as non-official member of the Board of Governor of Pakistan Agricultural Research Council in July, 1983 for three years and of his deep and exemplary lateral In farming. (2) Mr. Jamil Nishtar, Chairman, Agricultural Development Bank of Pakistan. He stated that the appellant No. 2 was known to him for last 25 years and happens to be related too him also. He was the exponent of Delia Markaz, small scale Dairy farming and had served with distinction on the Board of Agricultural Development Bank of Pakistan, the Agriculture University, Faisalabad and the Pakistan Research Council. (3) Mr. Lqbal Saeed, Chairman, State Cement Corporation of Pakistan. He stated that appellant No. 2 was known to him for last eight years as a dedicated and experienced agriculturist serving on the Board of Directors of the Agricultural Development Bank. (4) Mr. Aminullah Chaudhry, Secretary to Government of the Punjab, Agriculture Department. He stated that appellant No. 2 had "worked extensively towards evolving an important strain of
---
## Page 5
Basmati rice" has organized his farm "along the lines of Dehi Markaz and "has published a book entitled "Rural Problems and Solutions." (5) Dr. Abdul Majid, Director-General, Agriculture Rice Research Institute. He had known the appellant No. 2 for last 16 years, who is "one of the most leading rice growers of the country and whose scientific farming has been appreciated and recognized not only at home but also by foreign experts who,-have been visiting his farm". He has also published a book entitled "Rural Problems and Solutions". His contribution in evolving superior Basmati rice and establishing Dehi Markaz was also well appreciated. (6)Dr. Haleemul Husnain, Member Animal Sciences Pakistan Agricultural Research Council. He stated to have come into contact with appellant No. 2 while he himself was holding the post of Managing Director of Punjab Livestock Dairy and Poultry and Development Board and the appellant No. 2 was on its Board of Directors. (7)Brig. Ijaz Hussain, Secretary to the Government of Punjab, Livesteck and Dairy Development Department, Lahore. He claimed to have known the appellant No. 2 for the last 25 years, also as "an author of several articles on Livestock and Dairy Development. ' The Biodata appended with the nomination paper contained the following particulars of Appellant No. 2 "Biodata of Syed Mukhtar Hussain : Name : Syed Mukhtar Hussain. Father's: Late Syed Ashiq Hussain. Name Born : Village Shergarh, District Sahiwal, January, 1925. Educa- : Aitchison College, Lahore 1933.40 Senior Cambridge from lion Aitchison College, Lahore. Award- : Rivaz Gold Medal for the best Leaving boy (Academics and ed Sports). College Blazer for the Best Sportsman. Gradua : Government College, Lahore, B. A. 1941-43. Lion Captain of.Hockey-Athletics and Swimming teams. Awarded Roll of Honour for Sports. Punjab University Colours in Hockey-Athletics and Swimming teams. Care : Joined Army in 1943. Commissioned from I. M. A. Dehradun in 1944. Served in Infantry, 8 Punjab Regiment, Baluch Regiment. Burma Front. Instructor P. M. A. Kakul 1949-51. Advance Army Intelligence Course Uckfield-England. Instructor Army Intelligence Cliffden-Murree in 1952-55. Military Secretary to Governor of Punjab (later West Pakistan), 1955-62. Awarded T. Q. A. 1957. Retired prematurely in 1962 as Lt.-Col. Due to father's death. Practical : Settled on ancestral Farms- Kot Mubarak, Hafizabad and Farming Shergarh, 1962. Family Farm 250 Acres, Own 50 Acres: Started Dehi Markaz at Kot Mubarik 1963. Integrated all agricultural Services and linked these with marketing and processing,by installing a Farmers' Rice Mill at the Debi Markaz. Started supervised Agriculture Credit Introduced Agro-based industry of milk chilling and rice husking. Completed a 40-bed hospital and Eye Operation Theatre in 1963. Free medical aid and eye operations are performed at the hospital. All agricultural inputs, seed fertilizers, pesticides, credit-soil analysis veterinary aid, A. I. Extension, agricultural machinery on hire, diesels ; and tractor repair-maintenance are provided in a package at the Dehi Markaz since 1963. Offered the Dehi Markaz scheme to the Government in 1965 for adoption which has been adopted by the Government. Reclaimed 100% salt infested farm at Kot Mubarik and converted it into a
---
## Page 6
model farm for the farming community. ' Became the leading rice grower of the country. Colonel Basmati, the best aromatic rice of the country, was propagated at the Farm and introducedthroughout the country in 19o7 presently it is a world regrown variety. ' On quite a few occasions the Farm was adjudged the highest average yielder for rice, wheat and sugarcane. Articles : Apart from providing a lead to the farming community in on practical Billing, have shared practical experiences through the culture press media by contributing over 100 articles in Farmer's Corner the Pakistan Times since 1965 :- "Surplus Wheat Production Strategy". "Industry of the Landless". "Why Import Wheat". "Food Self-Reliance". "De-Urbanization". "Plea For Dehi Markaz". are the current articles which have been acclaimed by National and International circles. Author of "Rural Problems and Solutions" (Compilation of all the articles adopted 1.y world Bank and F._A. 0. For agricultural development and planning in developing countries. Non- : From 1962-1985. Official Was Non-official Director of Agricultural Development Bank of Assign- Pakistan. Member of Federal Irrigation Advisory Councilments Member State Bank Agricultural Credit Advisory Committee. Member of Federal I. R. D. P. Advisory Council. Was Syndicate and Senate Member of Agriculture University, Faisalabad. Director of Economic Research Council Punjab. Director of Livestock Board Punjab. Member National Planning Advisory Group. Member of Majlis-e-Sboora. Also Member :- Federal Seed Council. Federal Dairy Development Board. Punjab Livestock Board. Provincial Seed Council. Member Governing Body Div. Public School, Lahore. Founder Member Director, Agr: Dev: Corpn. Travel- Visited Europe in 1952. lit Visited Middle East and Europe in 1962. Visited Middle East and Europe in 1978-79. Performed 'Haj' in 1980." ' Certain preliminary objections, some of a technical nature, were taken by the appellants before the election Tribunal and some of them have been repeated before us too. The first was that as the appellants were not declared by notification to be the returned candidates to the Senate against the reserved seats, the Election Petition itself was premature and incompetent. The second was that a single election petition could not be filed against both the appellants. Separate election petitions should have been filed against earn. The third was that the respondent No. 1 not having objected before the Returning Officer to the eligivility or want of qualification of the appellants and having participated in the elections was estopped from filing an Election petition. The fourth was that the respondent having not led any evidence whatsoever not even himself appearing as his witness, was not entitled to succeed as the onus of the issue was entirely on him which in the absence of evidence remained undischarged. The fifth was that the requirement of law (Articles 59 and 62 of the Constitution and Articles 5(1) and 10 of Houses not Parliament and Provincial Assemblies (Election) Order, 1977) was not that the candidate contesting election should himself belong to a class (of Ulema, professionals or technocrats) but that he should represent the specified class without himself necessarily belonging to such a class. So no such test need be satisfied by thoappellants.
---
## Page 7
' Soon after the Election petition of respondent No. 1 was entrusted to the Tribunal on 17-3-1983 for trial under section 37(2) of the Act it came up for bearing before the Tribunal in presence of the parties and their counsel, as there was a prayer that "the notification of the result of the election as regards respondents Nos. 1 and be stayed meanwhile". The following record of proceedings taken on 19-1-1985 is to be taken note of "The petitioner has stated that he does. Not wish to file any other document except the one which he has filed with the petition and entirely relies on the nomination papers filed by the respondent Nos. 1 and 2 whose certified copies have been produced today and on my direction the originals have also been produced by the Deputy Election Commissioner which have been taken on record with the consent of the learned counsel for respondents Nos. 1 and 2." ' After noting that the notices for hearing for that date had been properly served the election Tribunal dealt with in following terms the objection that the election petition was premature as the result of the election had not been notified :- "A close scrutiny of sections 24, 25 and 34 read with rules 26(2) and 30 makes it clear that on completion of the count the candidate who emerges successful is deemed to be elected and the announcement of the result through notification in the Gazette is merely a formality. The learned counsel has relied on PLD 1962 Lab. 421, which is a judgment of the Full Bench of the High Court of West Pakistan and a judgment of the Chief Election Commissioner reported in PLD 1974 Tribunal 307, in which the same view has been taken. It, therefore, follows that once the count is complete, the party aggrieved by this result becomes entitled to file an election petition but the period of limitation is to be counted from the date of the notification in the official Gazette. A person can file a petition even before the announcement of the result in the official Gazette but in no case it can be filed after the expiry of 45 days from the date of the notification. Therefore, in view of this legal position the petition is not premature." ' Another preliminary objection with regard to the competence of the election petition on the ground of estoppel was disposed of as follows :- "If law provides for challenging the election on such ground without qualifying it by any pre- condition, it has to be given effect to. In my view, the petitioner's failure to raise objection at the time of filing nomination paper does not debar him from filing the petition on the ground that the respondent No. 1 was not qualified on the nomination day from being elected as a member." ' The Election Tribunal thereafter came to the conclusion that "it will not be possible to give any conclusive finding on the first prayer of the petitioner" therefore, necessarily the second prayer was considered. It took the view that prima facie the provision of law (Article 5(1) (a) (iv) of the Order) had to be strictly construed, a technocrat had to be a professional also, and the appellants did not appear to be either professional or a Technocrat. Hence the interim relief was granted. ' After settling the issues and recording of the evidence, the matter came up for decision on merits. The Tribunal noted the objection that as respondent No. 1 had not entered the witness-box, had led no evidence in spite of the fact that the onus of the issue was on him, his petition should be dismissed forthwith and dealt with it as follows :- "In view of the stand taken by the petitioner, if at all the petitioner had stepped into the witness-box and/or had called witnesses in , support of this petition they would have only given evidence to the effect that on the basis of the particulars given in the nomination forms and the biodata attached thereto, the two respondents do not fall within the definition of "technocrat", and for this no evidence was required to be adduced. Respondents Nos. 1 and 2 were not obliged, in the circumstances, to lead any evidence but as they desired to call certain witnesses in support of their case that they are technocrats, evidence of all such witnesses was recorded by this Tribunal." ' An effort was made to reiterate the objection based on the ground of estoppel but it was met by holding as hereunder :-
---
## Page 8
"The preliminary objection about the maintainability of the present election petition has, therefore, been finally decided by the order, dated 19-3-1985. An attempt has been made by the learned counsel for respondent No. 2 to argue that this part of the order, dated 19-3-1985 was not a final decision on this point. I do not agree. The question of maintainability of this election petition on the ground of estoppel has been finally decided by the order, dated 19-3-1985." ' Another objection that the elected candidate need not belong to a specified class but should only represent it was repelled on the following grounds- "if the contention of learned counsel were accepted, it would render the entire definition clause redundant. The purpose of defining the words "aalim", "technocrat" and "professional" was that the candidate aspiring for such special seat must himself fall within one such…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.