The captioned appeal has been preferred by Muhammad Saeed. Advocate under section 13(5) of the Senate (Election) Act, 1975 against the order dated 29th January, 2003 of the Returning Officer/Provincial Election Commissioner, N.-W.F.P., Peshawar (respondent No,1) whereby he has rejected the nomination papers of the appellant, who is contesting Senate election for the reserved seat for Technocrat as a nominee of Muttahidda Majlis-e-Amal from N.-W.F.P.
2. Mr. Shakeel Ahmad, Advocate learned counsel for the appellant zealously argued that the appellant had cleared his LL.B. examination in 1st Division (with distinction) in the year, 1981 which degree is duly recognized by the University Grants Commission nationally and internationally; that the appellant since passed the LL.B examination in a distinguished position as such Awarded Presidential Award, he was issued licence for practising in the subordinate Courts by the N.-W.F.P.
Bar. Council under the Pakistan Bar Council on 24-12-1981, later on issued licence for practising in the High Court; that the appellant had sufficient experience of 22 years of active and regular practice at the Bar to his credit. He is a well reputed lawyer and has good name in the lawyer community and public-at-large, for being a competent and experience person; that he had conducted hundred of cases before the subordinate Courts, High Court and Federal Shariat Court; that his cases also reported in PLJ 2001 and PLD 2001 and these journals/law books are nationally and internationally circulated, that the appellant having distinguished position in the society of the lawyers also held prominent position. Presently he is senior Naib Amir of Jamiat-Ulemai-e-Islam (F)
District Shangla, elected as General Secretary in the year, 1985 and thereafter as President in the year, 1989 of Shangla District Bar. The appellant also appeared in the competitive test for the post of Additional District and Sessions Judge in the year, 1999, where he topped among the participants/lawyers of N.-W.F.P. He again appeared in the examination in the year, 2001 for the post of Additional District and Sessions Judge and stood 2nd in the whole of the province. The learned counsel for the appellant placed documentary evidence in support of his contentions and also lists of cases conducted by the appellant before the subordinate Courts, High Court and Federal Shariat Court and photostat copies of reported cases in the law books duly sworn on oath.
He further submitted that the impugned order of the Returning Officer is quite contrary to the dictum laid down by the Honourable apex Court of Pakistan. He referred PLD 1988 SC 237; 1999 SCM R 573; PLD 1986 SC 2000 and PLD 1987 SC 490, which contained the definition of 'Technocrat' that 'Technocrat' means a professionally competent person who has professional competence and being recognized either nationally or internationally and he has at least required experience and expertise at a level which may not be the top position but should be above the ordinary level (2000 SCMR 25). His main stress was that from the documents placed on file it is quite evident that the appellant has more than 20 years experience in the profession of law. He is an Advocate of High Court, can appear before the High Courts and subordinate Courts in all the four Provinces in Pakistan. His degree of LL.B is recognized not only nationally but internationally too, as after LL.B in UK, USA or any other country he can join admission for LL.M. or for other further studies, besides passing the LL.B. in distinction, awarded with Presidential Award' which depicts that he is a competent person and also acknowledged by lawyer society as elected General Secretary and President of the District Bar Association.
3. Since no one appeared on behalf of respondents Nos.2 to 11 to contest the instant appeal and to oppose the contentions of the learned counsel for the appellant, therefore, I was constrained to seek the legal assistance of Mr. Hamid Farooq Durrani, learned Deputy Attorney General of Pakistan who appeared and advanced that the authorities referred by the learned counsel for the appellant although direct on the point of Technocrat/ professional. Since the present law is somewhat as amended, hence the definition of ' Technocrat' now in the 'field in Article 2(d) of the Conduct of General Elections Order, 2002 which reads as under: "2(d).---'Technocrat' means a person who is the holder of a degree requiring conclusion of at least sixteen years of education, recognized by the University Grants Commission or a recognized statutory body, as well as at least twenty years of experience including a record of achievement at the national or international level."
He throwing light on the definition submitted that so far the education of 16 years and 20 years experience is concerned, there is no cavil that the appellant. is LL.B. had sixteen years education, had more than 20 years practice to his credit as per documentary evidence. Last condition "including the achievement at the national or international level", requires proper interpretation that the word 'including' does not mean independent and additional condition, as such means that if there is break during 20 years and a person remained engaged somewhere else in connection with achievement nationally or internationally; that period can be included in case the required period of 20 years is deficient. If the law maker has the intehtion to mean as additional condition then instead of including word "having" record of achievement or besides 20 years experience a record of achievement at the national or international level, would have been used, so he, advanced that in his humble opinion it is a helping sentence in order to fill up the deficiency of period towards 20 years experience. An Advocate having experience of 22 years practising at subordinate Courts, High Court and Federal Shariat Court regularly without break does not' need any further achievement. A person allowed to practise anywhere in Pakistan means that he is nationally recognized. Next contended that an Advocate job is professional job. He is all the time in the process of research, drafting suits, appeals and writ petitions and also appearing before the Courts at a national level, is a specialized job having specialized degree in law recognized by Pakistan Bar Council. He has also placed reliance on (2000 SCM R 250). In nutshell the learned Deputy Attorney General very fairly conceded that the appellant covers the definition of Article 2(d) of the Conduct of General Elections Order,. 2002 and falls within the purview of ' Technocrat'.
4. I have given my anxious consideration to the submissions advanced by the 'learned counsel for the appellant and the learned Deputy Attorney General and have also gone through the relevant authorities and documentary evidence produced by the learned counsel for the appellant.
5. It is an admitted fact and proved from the record through documentary evidence that the .appellant is a practising lawyer w.e.f, 1981. He is also an Advocate of High Court. He is practising lawyer since day one without any break. He is also a holder of Presidential Award by passing LL:B. examination distinctively. He has also produced the list of cases conducted by him before the subordinate Courts, High Court and Federal Shariat Court and reported in the law journals. A profession of lawyer is considered as a specialized field. From the record it also reveals that he has prominent position among the lawyers community, remained General Secretary and President of District Bar Association Shangla and also stood 1st and 2nd respectively in the competitive examination of the Additional District and Sessions Judges in the whole of the Province. Drafting suits etc. and preparation of arguments by lawyer is also a research work. The dictum laid down in "
Eng: Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others, (2000 SCM R 250) relevant pages; 288 and 289, is also very much direct and conducive whereby the lawyer as a 'Technocrat" is recognized, It has been held in para.16 at pages 288 and 289 of the said authority in Anwar Kamal Khan Advocate case who while furnishing particulars in the nomination form in the column of profession he shown himself as an Advocate and in the column of present occupation he has mentioned 'Farming' on which the learned Bench of the Hon'ble Supreme Court of Pakistan observed that "they are tempted to observe that the striking feature of his bio-data is that he is an eminent politician but a non-practising lawyer. Being an Advocate of the lower Courts he never appeared in the High Court or the Supreme Court and his vociferous claim that he had confined his practice to his home district has been rendered dubious by his failure to furnish the list of cases conducted by him in the lower Courts. His bio-data disclosed that he is an Advocate in name only.
It has also been observed that it is not necessary that an Advocate should have practised before the High Court and Supreme Court. It is possible that an Advocate who confines his practice before the lower Courts only, may have attained distinctive position amongst his fellow professionals with his competence and professional skills. He also failed to show that he has distinctive position recognized by his fellow by electing him as their leader in the professional or in any other manner.
He had produced no single evidence that he has ever practised as an Advocate even before the lower Courts. Mere enrollment of an Advocate was of no avail. Since Anwar Kamal Khan could not produce the requisite level of skill in his profession for that he had required any professional imminence, his disqualification was maintained."
6. In the circumstances and the facts of the case if the present case of the appellant is compared and observations of the Hon'ble Supreme Court of Pakistan are followed, the case of the appellant is fully falls within the meaning of 'Technocrat'. The appellant has produced the list of cases conducted by him in the subordinate Courts, High Court and Federal Shariat Court. In (2000 SCM R 250) it is also laid down for guidance that experience and expertise at a level which may not be the top position should be above the ordinary level". All the more non-appearance on behalf of respondents Nos.2 to 11, no contestant, no objection raised as to the eligibility of the appellant as candidate for the reserved seat of 'Technocrat' at the time of scrutiny, no counter-affidavit. In the circumstances in the wake of the above discussion and seeking guidance from the above referred case-laws I am clear in my mind that the appellant covers the conditions of 'Technocrat', therefore, the instant appeal is allowed, the impugned order dated 29-1- 2003 of the Returning Officer (respondent No,1) is set aside and the nomination papers of the appellant are accepted. The Returning Officer is directed to include the name of the appellant in Form IV as contesting candidate for Senate election for the reserved seat for 'Technocrat'.
7. Before parting with this judgment, I feel obligatory to appreciate the demeanour of Mr. Hamid Farooq Durrani, the learned Deputy Attorney General for his good gesture in assisting me properly and fairly on legal as well as on academic side on a very very short notice.