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Petitioner: MUHAMMAD AFZAL VS Respondent: FEDERATION OF PAKISTAN through Secretary and others
Court Name: Sindh High Court Judge(s): Adnan Iqbal Chaudhry Title:MUHAMMAD AFZAL vs FEDERATION OF PAKISTAN through Secretary and
others Case No.: Suit No,Nil of 2018 Date of Judgment:2018-03-19 Reported As: PLD 2018 Sindh 529 Result: Suit dismissed Judgment ORDER ADNAN IQBAL CHAUDHRY, J.--Office objection: 1. The suit has not been registered due to an objection by the Additional Registrar that "how the suit is maintainable in prayer clause (a)." Such prayer clause impugns an order also passed by the defendant No,4 [Justice (Retd.) Shaukat Umar Pirzada - an Hon'ble retired Judge of the Lahore High Court]. I presume that the objection is raised on the basis of the bar contained in the Judicial Officers Protection Act, 1850, which bars civil suits against judicial officers described therein. However, since the defendant No,4 is a retired judge and has not been sued as a judge, the Judicial Officers Protection Act, 1850 is not attracted. The description of the defendant No,4 shows that he has been made party because he passed the impugned order in his capacity as an `Adjudicator' within the meaning of Article 37 of the Constitution of the Pakistan Cricket Board. The office objection can therefore be addressed by correcting the title of the defendant No,4 in red-ink by deleting his name and by describing him as 'Adjudicator'. Order accordingly. The suit be registered. 2. During the course of arguments, and for reasons that become apparent infra, Mr. Lakhani, Advocate for the plaintiff had withdrawn the suit against the defendant No,6 (Federal Investigation Agency). Therefore, the office to delete (in red-ink) the defendant No,6 from the array of defendants. Overview of the proceedings: 3. The subject matter of the suit is the election of Zone-II Cricket Association Karachi, an association regulated under the Constitution of the Pakistan Cricket Board, 2014. The plaintiff assailed the eligibility of the defendant No,5 to contest the election for President of the said Association. His
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objection was rejected by the Deputy Election Commissioner of the Pakistan Cricket Board vide order dated 4-8- 2017, and his appeal to the dispute resolution forum prescribed (the defendant No,4) was also dismissed vide order dated 22-12-2017; hence this suit to challenge the said orders. Vide C.M.A. No,15/2018 the plaintiff prayed that pending this suit the election be stayed, however, the interim order passed by this Court on 1-1-2018 stayed only the announcement of the election result. Pursuant to a subsequent order dated 23-1-2018, the election result lies in a sealed envelope in custody of the Nazir of this Court. Constitution of the Pakistan Cricket Board (PCB): 4. The present Pakistan Cricket Board (the defendant No,2, hereinafter 'the PCB') is constituted vide notification S.R.O. 43(KE)/2014 published in the official gazette on 30-8-2014, as amended vide S.R.O. 38(KE)/2015 published in the official gazette on 21-3-2015. These notifications were issued by the Federal Government in exercise of its powers under sections 3(1) and 4 of the Sports (Development and Control) Ordinance, 1962. The notification is titled the 'Constitution of the Pakistan Cricket Board' (hereinafter 'the PCB Constitution'), which superseded the previous Constitution of the Pakistan Cricket Board, 2013. 5. The salient features of the PCB Constitution are as follows: (i) Per Article 3, the PCB is a body corporate. (ii) The affairs of the PCB are guided and managed by a Chairman, a Board of Governors which includes the Chairman, a General Body which also includes the Chairman, and a Patron who is the Prime Minister. Per Article 6(1), the Chairman of the PCB is elected by the Board of Governors. Powers of the Board of Governors are set out in Article 12, which includes the power to formulate regulations. (iv)Composition of the Board of Governors of the PCB is set out in Article 10, which consists of around 12 members, out of which 4 are duly elected Presidents of the 'Regions'. (v) Per Article 2(xxvi), a 'Region' means an administrative area declared as such by the PCB. Article 14 envisages a 'Regional Cricket Association' for each Region, and per Article 2(xxvii), a 'Regional Cricket Association' means a Cricket Association of a Region as recognized by the PCB and includes a 'City Cricket Association'. Per Article 2(x), a 'City Cricket Association' means the City Cricket Association of Lahore and Karachi and includes any other cricket association of a city recognized and declared as such by the PCB. (vi)Per Article 14(5), the electoral college for election of Regional Cricket Associations comprises of elected representatives of 'District or Zonal Cricket Associations'. Per Article 2(xvii), a 'District Cricket Association' means a Cricket Association of a District recognized by the PCB and includes a 'Zonal Cricket Association'. Per Article 15, the District or Zonal Cricket Associations are required to perform their functions under the guidance and supervision of their respective Regional Cricket Associations. (vii) Per Article 15(2), the electoral college for election of District or Zonal Cricket Associations comprises of 'Active Clubs' on the bads of one club one vote. An 'Active Club' is defined in Article 2(ii) and one of its qualifications is that it is a cricket club which has adopted the 'Model Constitution' formulated by the Board of Governors of the PCB. (viii) Per Article 16, there is a General Body of the PCB which includes Presidents from each 'Full Member' and Presidents from each 'Associate Member'. Per Article 17, all Regions are included in the definition of 'Full Member'. Per Article 18, each District Cricket Association having playing rights is included in the definition of 'Associate Member'. (ix)Per Article 29, there shall be an Election Commissioner of the PCB who shall be independent of the PCB. The Election Commissioner is appointed by the Patron of the PCB. The qualification of an Election Commissioner is that of a former Judge of the Supreme Court of Pakistan or of a High Court, or a person qualified to be such, or a person who has retired from government service in BS
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22 or equivalent or above. The Board of Governors of the PCB, on the recommendation of the Chairman PCB and in consultation with the Election Commissioner, may appoint one or more Deputy Election Commissioners. (x)Per Article 37, the PCB shall maintain a panel of 'Adjudicators' comprising of former Judges of the Supreme Court of Pakistan and the High Courts or persons qualified to be such. A person aggrieved of a decision/order of the Election Commissioner may prefer an appeal to the Board of Governors which shall be referred by them to an Adjudicator. (xi) The power of the PCB to make rules and regulations for carrying its objects into effect stems from section 5 of the Sports (Development and Control) Ordinance, 1962; and per Article 41(b) of the PCB Constitution, the PCB may make Regulations also for holding elections of the Regional Cricket Associations, the District Cricket Associations and Clubs. In exercise of such regulation- making power, the PCB made inter alia the following Regulations on 13-6-2015: `Pakistan Cricket Board Election Regulations, 2015' (hereinafter 'the Election Regulations 2015'), so as to regulate elections of Clubs, District and Zonal Cricket Associations, and Regional Cricket Associations; 'Model Constitution of Regional Cricket Association', so as to regulate such Associations, which Regulations are binding on Regional Cricket Associations in terms of Article 14(1) of the PCB Constitution; 'Model Constitution of District/Zonal Cricket Association', so as to regulate such Associations, which Regulations are binding on District/Zonal Cricket Associations in terms of Article 15(1) of the PCB Constitution; 'Model Constitution of Club', so as to regulate the Active Clubs and their elections, which Regulations are binding on the Active Clubs in terms of Article 2(ii) of the PCB Constitution. While Regulations are 'formulated' by the Board of Governors of the PCB under Article 12(a) of the PCB Constitution, since it is the Board of Governors who manage the affairs of the PCB [per Article 12(f) of the PCB Constitution], the Regulations so formulated and approved by the Board of Governors are Regulations of the PCB. (xii) From the PCB Constitution it appears that the pyramid of the polity of Pakistan Cricket bottom- up, is such that the Presidents of Active Clubs elect the (President, Secretary and Treasurer of) the District/Zonal Cricket Associations, who in turn elect Presidents of Regional/City Cricket Associations, out of which four of the Presidents qualify for a place on the Board of Governors of the PCB. 6. Mr. Masood Ghani, Advocate for the defendant No,5, during his submissions also highlighted the following : (i) that there are presently 16 Regional Cricket Associations in Pakistan and these are listed in Regulation 3(n) of the Model Constitution of Regional Cricket Association; (ii)that in a Region there may more than one District/Zonal Cricket Association, and that the Region of Karachi has 7 Zonal Cricket Associations; (iii)that the election of 6 out of 7 Zonal Cricket Associations in the Region of Karachi are complete; the one that remains i,e, the election of Zone-II Cricket Association Karachi, is the subject matter of this suit; and that only after the present controversy is decided will the electoral college be complete for electing the Regional Cricket Association of Karachi, which is also a City Cricket Association as per Articles 2(xxvi) and 2(x) of the PCB Constitution, and which is popularly known by its acronym 'the KCCA', the defendant No,3 herein; (iv)that since the term of the office bearers of the defendant No,3 (the KCCA) had lapsed, it is presently being managed by a Provisional. Committee of 3 persons (one of whom is Mr. Tanweer Ashraf Advocate); and that until election of the defendant No,3 materializes, it is not relevant to this suit;
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(v)that in the interim order dated 1-1-2018 passed in this suit, the direction to the defendant No,3 (the KCCA) to bring the record of the disputed election, was made under the impression that the subject election pertained to the defendant No,3, which is not the case. The KCCA is a Regional/City Cricket Association, while the present controversy pertains to a District/Zonal Cricket Association. 7. Mr. Muhammad Ali Lakhani, Advocate for the plaintiff, during his submissions highlighted that the eligibility of a person to contest election of a District/Zonal Cricket Association is set-out in Regulation 10 of the Election Regulations, 2015 under the part titled `Election Regulations for District/Zonal/City Cricket Associations'. Since this Regulation is central to the case of the plaintiff, the relevant part of it, along with an amendment mentioned in a footnote, is reproduced as follows : 10. Any person wishing to contest the elections of District/Zonal Cricket Association shall fulfill the following qualification criteria:- a. Is a Pakistani citizen; b. Is resident of the same District/Zone; c. Should be a member of Active club declared as such by the Scrutiny Committee PCB; d. Is actively associated with the game of cricket in the area of his residence; (e) .............................. (f) .............................. Thus, if the amendment in the foot-note is read into Regulation 10 of the Election Regulations, 2015, it will read as under: 10. Any person wishing to contest the elections of District/Zonal Cricket Association shall fulfill the following qualification criteria:- a. Is a Pakistani citizen; b. Is resident of the same District, except in the case of Lahore, Karachi, and Islamabad, where such person must be residing within the territorial limits of the same city; c. Should be a member of Active club declared as such by the Scrutiny Committee PCB; d. Is actively associated with the game of cricket in the area of his residence; e......................... f. ...................... Mr. Masood Ghani, Advocate for the defendant No,5 pointed that the eligibility criteria set-out in Regulation 10 of the Elections Regulations, 2015 is identically set-out in Regulation 6 of the 'Model Constitution of District/Zonal Cricket Association' . The dispute and the underling proceedings: 8. The case of the parties as gleaned from the record is as follows. Per the election schedule issued by the Deputy Election Commissioner PCB for election of Zone-II Cricket Association Karachi, the last date for filing objections against candidature was 31-7-2017, which were to be decided by 4-8- 2017; the last date for filing an appeal against the decision of the Election Commissioner was 18-8- 2017; and polling was scheduled for 26-8-2017 at National Stadium Karachi. The plaintiff, the defendant No,5 and two others were candidates for the office of President. By his letter dated 30-7- 2017 addressed to the Deputy Election Commissioner PCB, the plaintiff objected to the eligibility of the defendant No,5 to contest the election, which letter reads as follows: The Deputy Election Commissioner PCB Gaddafi Stadium Lahore. Dear Sir Re: LODGEMENT OF COMPLAINT AGAINST MR.JAVED AHMED KHAN FOR OBJECTION OF HIS DUAL CITIZENSHIP FOR THE PARTICIPATION AS PER PCB ELECTION REGULATION FOR REGIONAL CRICKET ASSOCIATIONS.1
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With reference the above mentioned subject, I, Mr. Afzal as Presidential candidate participating in the coming PCB Election and would like to bring into the kind knowledge of the Honourable Deputy Commissioner of PCB at Gaddafi Stadium-Lahore that the candidate Mr, Javed Ahmed is participating in the PCB Election from Karachi who is having dual citizenship. I would like to also point out that it is clearly and explicitly mentioned in the prescribed Rules and Regulations of PCB Election the eligible candidate will be only a Pakistani Citizen and must be Resident of the same Region/City and my objection is in accordance with prescribed Rulings of PCB Regional Election for Regional Association. Hence his application does not become eligible in the said Election to participate as normal candidate according criteria given by the PCB. I request you to kindly review the same and give decision according to prescribed Rules and Regulations of PCB. Thanking you. Yours truly, For NEW UNITED GYMKHANA CRICKET CLUB - sd - MUHAMMAD AFZAL Presidential Candidate-KCCA Zone-II 30.07.2017. Enclose: Documents (Underlining supplied by me for emphasis) The aforesaid objection of the plaintiff was rejected by the Deputy Election Commissioner and the nomination form of the defendant No,5 was accepted vide order dated 4-8-2017, which order reads as follows: Objection against the candidature of Mr. Jawed Ahmed Khan-Election of Zone-II Cricket Association, Karachi. ORDER 1. An objection against the candidature of Mr. Jawed Ahmed Khan has been filed by Mr. Muhammad Afzal, candidate, wherein, it has been alleged that:- (a) Mr. Jawed Ahmed Khan has dual citizenship. As per PCB Election Regulation, the eligible candidate will only be a Pakistani citizen and must be resident of the same region/city therefore; he is not entitled to participate in the election. 2. In response to above objection, Mr. /awed Ahmed Khan submitted written reply and contended that::- a. I am a citizen of Pakistan holding CNIC (42301-1010867-1) (Copy enclosed) b. As per rule 10(a), a person wishing to contest the election of District/Zonal Cricket Association should be a Pakistani Citizen. c. Objection is totally baseless and unlawful and the same to be rejected. 3. Under paragraph 10(a) of PCB Election Regulations for District/Zonal/City Cricket Associations, any person wishing to contest the elections of District/Zonal Cricket Association should be a Pakistani Citizen. 4. It is evident from the CNIC of Mr. Jawed Ahmed Khan that he is a Pakistani citizen and as per Election rules and regulations he is eligible to contest the forthcoming election of Zone-11 Cricket Association Karachi. 5. In view of above, the objection is turned down. Hence the nomination form of Mr. Jawed Ahmed Khan is accepted. sd Ahmed Shehzad Farooq Rana Deputy Election Commissioner PCB. Dated: 4th August, 2017
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9. The aforesaid order dated 4-8-2017 passed by the Deputy Election Commissioner rejecting the plaintiff's objection to the eligibility of the defendant No,5 was appealed by the plaintiff under Article 37(2) of the PCB Constitution to the Board of Governors of the PCB, who as per the said Article, referred the appeal for decision to the defendant No,4 who is an 'Adjudicator' on the Panel of Adjudicators of the PCB appointed pursuant to Article 37(1) of the PCB Constitution. Per the memo of the plaintiff's appeal before the Adjudicator, the grounds taken by him were essentially: (a) that the Deputy Election Commissioner had disregarded the American passport of the defendant No,5 which made him a dual citizen and thus ineligible for election under Regulation 10(a) of the Election Regulations, 2015 (reproduced above); (b) that the failure of the defendant No,5 to mention that he was also a citizen of the USA was a misstatement in his nomination form; and (c) that while deciding the plaintiff's objections, the Deputy Election Commissioner did not provide him a hearing. As regards ground (a), reliance was also placed by the plaintiff on Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973 whereunder a person is disqualified from being a member of Parliament if he acquires the citizenship of a foreign state. Though it was stated in the appeal that a copy of the American passport of the defendant No,5 was annexed to the appeal, what was actually filed was a screen-shot of a computer data-base showing the name of the defendant No,5 and a USA passport number. In his reply to the plaintiff's appeal before the Adjudicator, the defendant No,5 stated inter alia: (a) that the fact that he was a Pakistani citizen as demonstrated by his CNIC, was sufficient to fulfill the requirement of Regulation 10(a) of the Election Regulations, 2015 and thus he had not made any misstatement in his nomination form; and (b) that even if he were a dual citizen, that was not a disqualification under Regulation 10(a) of the Election Regulations, 2015. He was however vague in answering whether he was a dual citizen of the USA or not. 10. Before the Adjudicator PCB (the defendant No,4), the parties were represented by legal counsel. On behalf of the plaintiff it was urged that in view of section 14 of the Pakistan Citizenship Act, 1951, once the defendant No,5 acquired another nationality he ceased to be a Pakistani citizen; and also that Regulation 10(a) of the Election Regulations, 2015 was ultra vires Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973. An additional argument advanced by the plaintiff's counsel before the Adjudicator was that the amendment made to Regulation 10(b) of the Election Regulations, 2015 to benefit candidates only from the bigger cities of Lahore, Karachi and Islamabad, was not based on reasonable classification and ultra vires Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, and if the amendment made is struck down on that score then under Regulation 10(b) as it originally stood, the defendant No,5 did not reside in the same Zone-II for which election was being held, and hence was also not eligible on that count. The submissions made on behalf of the defendant No,5 before the Adjudicator were the same as his written reply discussed above, and therefore I do not repeat them. 11.As regards the submission of the plaintiff's counsel before the Adjudicator that the defendant No,5 was also disqualified under the original Regulation 10(b) of the Election Regulations, 2015 and that the amended Regulation 10(b) was to be struck down being ultra vires Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, these were rejected by the learned Adjudicator for the reason that such grounds were never taken by the plaintiff before the Deputy Election Commissioner nor in the memo of appeal before the Adjudicator. The latter submission was also rejected for the reason that an Adjudicator acting under the PCB Constitution had no jurisdiction to do so. As regards the plaintiff's reliance on Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973, the learned Adjudicator held that the disqualification thereunder cannot be imported into the Election Regulations, 2015 when the latter did not provide for it, and in holding so the learned Adjudicator relied on the case of Zahid Iqbal v. Hafiz Muhammad Adnan (2016 SCMR
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430). 12.That before the Adjudicator, in reply to the plaintiff's contention that the defendant No,5 was not a Pakistani citizen by virtue of section 14(1) of the Pakistan Citizenship Act, 1951, the defendant No,5 relied upon S.R.O. 581(1)/2002 notified by the Federal Government under section 14(3) of the Pakistan Citizenship Act, 1951, which excluded the provision of section 14(1) of the said Act for Pakistani citizens holding dual citizenship of the USA. After examining section 14 of the Pakistan Citizenship Act, 1951 and the said S.R.O. 581(1)/2002, the learned Adjudicator held that even if the defendant No,5 was a dual national of the USA, he did not become ineligible under Regulation 10(a) of the Election Regulations, 2015 and the plaintiff's appeal was dismissed by the Adjudicator on that score also. 13.Though reliance by the defendant No,5 before the Adjudicator on S.R.O. No,581(1)/2002 was, in my view, an acknowledgment that he (the defendant No,5) was in fact a dual citizen of the USA, while hearing the arguments of Mr. Masood Ghani (Advocate for the defendant No,5) I nonetheless asked him to do away with the ambiguity and state for the record whether the defendant No,5 was a dual citizen of the USA or not. His reply was that the defendant No,5 was. Since that left no issue of fact to be tried by evidence, learned counsels agreed and proposed that the counter-affidavits of the defendants to C.M.A. No, 15/2018 be treated as their pleadings, and the suit be decided on the basis of admitted documents on the record by addressing what were only questions of law. Therefore, with the consent of the learned counsel I settled the following issues: I.Whether any objection raised by the plaintiff before the Deputy Election Commissioner to the eligibility of the defendant No,5 to contest the subject election was not considered by him? If so, to what effect ? II. Whether the amendment to Regulation 10(b) of the Election Regulations, 2015 is invalid for not having been published in the official gazette? If not, whether the defendant No,5 was ineligible to contest election under the original Regulation 10(b)? III. Whether the order dated 22-12-2017 passed by the learned Adjudicator is contrary to law ? The ambiguity whether the defendant No,5 was a dual citizen of the USA having being laid to rest, I need not discuss the submissions made by Mr. Lakhani on behalf of the plaintiff to demonstrate that the defendant No,5 was a dual citizen. Submissions in this suit in respect of Regulation 10(b) of the Election Regulations, 2015: 14.In this suit, the plaintiff's challenge to the eligibility of the defendant No,5 under the Election Regulations, 2015 is on a legal plane different from the one in appeal before the learned Adjudicator. 15.Mr. Lakhani for the plaintiff contended that since the amendment made by the PCB to Regulation 10(b) of the Election Regulations, 2015 had not been published in the official gazette as required by section 20-A of the General Clauses Act, 1897, the said amendment did not take legal effect, and consequently Regulation 10(b) exists in its original form under which the defendant No,5 is not eligible. He further contended that vide letter dated 30-7-2017 addressed to the Deputy Election Commissioner, the plaintiff had assailed the eligibility of the defendant No,5 also under the original Regulation 10(b), viz., that admittedly the defendant No,5 was not a resident of the same zone for which election was being held, but that such objection had been ignored by the Deputy Election Commissioner. However, Mr. Lakhani conceded that the invalidity of the amendment to Regulation 10(b) on the ground of section 20-A of the General Clauses Act, 1897 had never been urged by the plaintiff in the proceedings below, but he contended that that being a point of law, he can raise it at any stage. Mr. Lakhani also conceded that the ground of ineligibility under Regulation 10(b), or that the same had been ignored by the Deputy Election Commissioner, had not been taken by the plaintiff in the memo of appeal before the Adjudicator. 16.Mr. Masood Ghani for the defendant No,5, and Mr. Furqan Ali for the…
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