SARMAD JALAL OSMANY, J.-- This petition impugns the Notification . Dated 22.5.2004 No. CAZ/Sindh/AAO/3 (510) 2001 whereby the previous Notification dated 9.12.2003 of even number nominating the Provincial Zakat Council in Sindh was withdrawn. The facts leading to the filing of the petition are that as per latter Notification the Governor of Sindh nominated the Provincial Zakat Council under Section 14 of the Zakat and Ushr Ordinance, 1980 for a term of three years to consist of the following:-
(1) Mr. Justice Anwar Zaheer Jamali Chairman.
(2) Moulana Shah Feroz-ud-Din Rehmani Member.
(3) Moulana Muhammad Essa Kharrani Member.
(4) Allama Abbas Kumaili Member.
(5) Prof. Qavi Ahmed Member.
(6) Mr. Abdul Khalique Farooqui Member.
(7) Secretary to Government of Sindh, Finance Department Ex-Officio/Member.
(8) Secretary to Government of Sindh Local Government. Ex-Officio/Member.
(9) Secretary to Government of Sindh Social Welfare Department. Ex-Officio/Member.
(10) Secretary/Chief Administrator Ex-Officio/ Zakat, Zakat and Ushr Department Member/Secretary.
The names of two women members approved by the Governor of Sindh shall be notified later on as per law.
By the order of Governor of Sindh.
Sd/- FASIHUDDIN KHAN SECRETARY TO GOVERNMENT OF SINDH
2. Thereafter vide Notification dated 18.3.2004 two lady members viz. Mrs. Mahjabeen Shariar and Mrs. Shamim Ghulam Akbar were nominated as members of the Provincial Zakat Council, Sindh by the Federal Government for a term for 3 years with effect from 3.12.2003 in accordance with the Provisions of Section 14(2)(c) of the Ordinance.
3. Subsequently, in accordance with Section 16(4) of the Ordinance, per the petitioners the following persons were nominated as Chairman of the District Zakat Committees in the Province of Sindh by the Provincial Zakat Council:- A. Hafiz Abdul Malik Shikarpur.
B. Hafiz Muhammad Ismail Sukkur.
C. Syed Deedar Hussain Shah Larkana.
D. Professor Muhammad Ahmed Nawabshah.
E. Moulvi Muhammad Raheem Tharparkar.
F. Muhammad lshaque Channa Naushero Feroz.
G. Hafiz-Muhammad Ismail Halepota Sanghar.
H. Captain Dr. Liaqat Ali Umrani Thatta.
Prof. Muhammad ldrees Hyderabad; J. Sher Khan Jamali Jacobabad.
K. Prof. Saleemul Haq Abbasi Khairpur L. Haji Muhammad Akhlaq Mirpurkhas.
4. Per the petitioner however, the names of the foregoing Chairmen were not notified by the respondent No, 1 viz. Secretary Zakat and Ushr Department Government of Sindh, for reasons best known to him and the Minister of the Department. On this score, it is the allegation of the petitioners that the notification was not issued as both the Secretary and the Minister wanted their own nominees to be appointed as the Chairmen for their own ulterior purposes and on considerations which were not above board.
5. Subsequently, the impugned notification was issued by the Government of Sindh Zakat and Usher Department dated 22.5.2004 whereby the earlier notification constituting the Provincial Zakat Council dated 9.12.2003 was withdrawn. On the name day another notification was named whereby the following persons were appointed as Chairman and members of the Provincial Zakat Council.
A. Justice (R) Muhammad Roshan Essani Chairman.
B. Mrs. Shamim Ghulam Akbar Member.
C. Mrs. Memoona Hyder Member.
D. Prof. Qavi Ahmed Member.
E. Makhdoom Nadeem Ahmed Hashmi Member.
F. Mr. Abdul Sattar Shaikh Member.
G. Moulana Ghulam Muhammad Member.
H. Moulana Muhammad Umer Dadideno Member.'
6. Concurrently, on 25.5.2004 another notification was issued by the Government of Sindh, Zakat and Ushr Department whereby the term of the District Zakat and Ushr Committees previously appointed was extended for a further six months with effect from 24.2.2004.
7. On the basis of the foregoing facts and circumstances it is therefore, prayed by the petitioners that the notification dated 22.5.2004 and 25.5.2004 be declared as unlawful and of no legal consequence and the operation of the same be suspended. So also the names of the petitioners Nos. 3, 4 and 5 who have been nominated as the Chairmen of the District Zakat Committee in their respective Districts by the Provincial Zakat Council be notified as such.
8. The matter was placed before us for hearing on 16.6.2004 when Mr. Qabool Ahmed Shaikh, the Secretary of the Department was present as well as Mr. Muhammad Sarwar Khan, learned Addl. A. - G. And. Mr. Raja Qureshi for the petitioners. On that day, we were pf the view that prima facie the notification dated 22.5.2004 (whereby the earlier Notification dated 9.12.2003 was withdrawn) was not warranted under the law and hence we suspended the operation thereof and the matter was adjourned to 22.6.2004. On this occasion, learned Addl. A.G. Placed on the record another notification dated 19.6.2004 whereby the earlier notifications both dated 22.5.2004 establishing a new Provincial Zakat Council were in turn also withdrawn. Hence learned Addl. A.G. Submitted that as the petition had served its purpose it may be disposed of. However, Mr. Raja Qureshi, in turn was of the opinion that the additional prayer in the petition was the notification of the Chairman of the District Zakat Committees as recommended by the original. Provincial Zakat Council constituted per notification dated 9.12.2003. To this submission, the Secretary had stated that the matter is still pending with his Department since so far no official communication had been sent to him for the purpose of such notification which was accordingly not issued. After hearing all the parties, we had directed that the respondent No. 1 should file parawise comments and that the entire record available with him should be placed at the disposal of the Court. On the next date viz. 23.6.2004, such record was so placed before us and Mr. Anwar Mansoor Khan, learned A.G. Sindh also filed a statement signed by himself as well as the Chief Secretary attaching a notification on dated 22.6.2004 whereby the Chairmen District Zakat Ushr Committees as nominated by the Provincial Zakat Council. Vide its decision dated 24.4.2004 were notified as per Section 16 of the Ordinance.
Hence, it was submitted in the statement that now as both the prayers of the petitioner shave been fulfilled viz. Revival of the Provincial Zakat Council per notification dated 19.6.2004 and issuance of the notification regarding the appointment of the Chairman Provincial Zakat Committees, the petition be disposed of as such. Alongwith such statement a letter dated 16.6.2004 addressed to the learned A.G., Sindh by the Chief Secretary, Government of Sindh was filed advising the former that the Government has decided to withdraw the notification, dated 22.5.2004. Mr. Raja Qureshi also placed on the record a letter dated 7.6.2004 from the Principal Secretary, Governor of Sindh addressed to the Chief Minister. This letter recorded the displeasure of the Governor at the manner whereby the original Provincial Zakat Council was denotified and a new one constituted without his concurrence and that of the Hon'ble Chief Justice of this Court who per law was to be consulted by the Governor regarding the appointment of the Chairman, Provincial Zakat Council who is to be a Judge of this Court. The matter was adjourned to 24.6.2004 when we had heard Mr. Raja Qureshi, the learned Advocate-General, Sindh and the Secretary Mr. Qabool Ahmed Shaikh whereafter we had passed a short order disposing of the petition as follows:-
1. That under Section 14 of the Zakat and Ushr Ordinance, 1980 (hereinafter referred to as the "Ordinance, 1980") the Governor, Province of Sindh has the right and authority under the law to nominate the Chairman of the Provincial Zakat Council.
In consultation with the Hon'ble Chief Justice of this Court and also to nominate five persons of whom three shall be Ulema as per sub-sections (a) and (b). Similarly, under Section 15 of the Ordinance, the Chief Administrator, who is also a Member and the Secretary of the Council is to be appointed by the Governor as a Member. Once the Chairman/Members/Chief Administrator has been appointed/nominated by the Governor, two women are to be nominated by the Federal Government under sub-section 2(c),, the remaining members being the Secretaries to the Government of Sindh, i.e. Ex-officio. The Provincial Government only is to notify the Provincial Zakat Council whereafter the same shall come into existence.
2. Once the Provincial Zakat and Ushr Council has been established in terms of Section 14 then in terms of Section 16 of the Ordinance, 1980, the District Zakat and Ushr Committees shall be constituted by the Provincial Council concerned in two phases: First by nominating/appointing the Chairman District Zakat Committee and then by selecting the members thereof in consultation with the Chairman so appointed. Thereafter the District Zakat Committee is to be notified under sub-section (5) of Section 16 of the Ordinance, 1980 by the Council itself.
3. The Notification, issued by the Government of Sindh on 22.5.2004, withdrawing the earlier Notification dated 9.12.2003, whereby the Provincial Zakat Council was established by the Governor was void, ab initio and without lawful authority. Subsequently, Notification dated 22.5.2004, establishing new Provincial Zakat Council by the Government of Sindh and then nominating under Notification dated 22.5.2004 were also void, ab initio and without lawful authority.
4. Since the above-mentioned Notifications, issued by the Government of Sindh, were void, ab initio and without lawful authority, they do not affect the validity of Notification dated 9.12.2003, by which the Governor of Sindh had appointed Chairman, Members as ex officio and Chief Administrator for Provincial Zakat Council. That remained unaffected and valid. The nomination of Chairman of District Zakat Committees in respect of some of the Districts by said Provincial Zakat Council is a legal and valid nomination. The Provincial Zakat Council, established under Notification dated 9.12.2003, has to appointed select the Members of District Zakat Committees, in connection with the Chairman, so nominated / appointed.
5. Since the working of Provincial Zakat Council was disturbed through afore-mentioned illegal acts and Notifications issued by the Government of Sindh, the Zakat funds for financial year 2003-04 shall not lapse and shall be disbursed by the Provincial Zakat Council, as provided under the Ordinance, 1980,"
9. We now intend to record the reasons for the above-stated short order.
10. Mr. Raja Qureshi, learned counsel for the petitioners has submitted that in terms of Section 14 of the Zakat and Ushr Ordinance, the Provincial Zakat Council is to be established to consist of a Chairman nominated by the Governor in consultation with the Hon'ble Chief Justice of this Court being a Judge thereof, five persons of whom two shall be Ulema to be nominated by the Governor, two women to be nominated by the Federal Government and three ex officio members viz. The Secretary Finance, Social Welfare and Local Government so also the Chief Administrator who is to be appointed by the Governor in terms of Section 15 is to be a member of a Council as well. As its Secretary. Hence per learned counsel when such a Provincial Zakat Committee was appointed vide notification dated 9.12.2003, it could not be denotified as had been done by the Department vide impugned notification dated 22.5.2004 without concurrence of the Governor. Similarly, the failure of the Government to notify the Chairman of the District Zakat Committees when the same had been approved by the Provincial Zakat Council was again not warranted under the law as per Section 10(1) and (4) of the Ordinance, the Chairman and the Members of the District Zakat Committee shall be nominated by the Provincial Zakat Council in consultation with the Chairman thereof. Hence, per learned counsel the extension in the tenure of the previous Zakat Committee Chairmen was also unlawful.
11. The learned A.-G., Sindh has supported the submissions of Mr. Raja Qureshi with the only caveat that in terms of Section 14 of the Ordinance the Provincial Government is to establish the Provincial Zakat Council and notify it. These consist of the Governor's nominees viz. Per sub-section (2)(a) and (b), two women who are the nominees of the Federal Government and the three ex officio members who are the Secretaries of the various Provincial Departments. So also per learned A.-G.
The Chief Administrator appointed under Section 15 of the Ordinance by the Governor is to be a member of the Council and also its Secretary. The learned A.-G. Has conceded that in terms of Schedule 3, Item No. 10 of the Sindh Government Rules of Business the Governor has the prerogative in the matter of appointment of the. Chairman and Members of the Zakat Council. So also per learned A.-G. Again as per Item No. 9 the Chief Administrator is to be appointed by the Governor.
Consequently, per learned A.-G. The notification dated. 22.5.2004 denotifying the earlier Provincial Zakat Council and appointing a new one as well as the notification dated 25.5.2004 extending the term of the previous Chairman of the District Zakat Committees were unwarranted under the law as they did not have the consent of the Governor. However, since the same have been withdrawn resulting in the resurrection of the Provincial Zakat Council appointed vide notification dated 9.12.2003 and the Chairman District Zakat Committees also being notified, the learned A.-G. Has prayed that the petition be disposed of as it has achieved its purpose.
12. Mr.., Qabool Ahmed Shaikh, the Secretary Zakat and Ushr Department, Government of Sindh, has submitted that insofar as the denotification of the earlier Provincial Zakat Council is concerned he was only following the orders of his superior officers without naming the same. As regards the notification of the Chairman, District Zakat Committees according to him their names were never formally sent upto the Government by the Provincial Zakat Council for this purpose and hence same were not notified.
13. We have heard learned counsel, learned A.-G. As well as Mr. Qabool Ahmed Shaikh, Secretary Zakat and Ushr Department, Government of Sindh and also perused the record. Our conclusions are as follows- 14. It would be seen that per Section 14(1) of the. Ordinance the Provincial Government vide notification in the official Gazette is to establish a Provincial Zakat Council, to exercise general superintendence and control over matters relating to Zakat and Ushr, particularly the Zakat kinds in the Province and the maintenance of their accounts, in accordance with the policy guidelines given by the Central Council. Per sub-section (2) the Provincial Council is to.
Consist of a Chairman, five person (out of whom three shall be Ulema) to be nominated by the Governor, two women not less than 45 years of age to be nominated by the Federal Government, the Secretaries to the Provincial Government in the Local Government, Social Welfare and Finance Departments and the Chief Administrator who shall also be a Secretary of the Council. Per sub- section (3) the Chairman of the Provincial Zakat Council is to be a person who is or has been a Judge of a High Court to be nominated by the Governor' in consultation with the Hon'ble Chief Justice of the High Court. Per Section 15 the Chief Administrator shall be appointed by the Governor in consultation with the Federal Government and is to have the status 'and Grade of a Member Board of Revenue. His tenure and other terms and conditions of service shall be such as may be determined by the Provincial Government. As observed above, the Provincial Zakat Council was constituted vide notification dated 9.12.2003 by the Governor. The issue which is to be resolved now is whether admittedly without the concurrence. of the Governor this Council could be denotified by the Provincial Government and another one notified as has been done in the matter per the impugned notification.
15. In this regard it would be seen that per Article 129 of the Constitution the Executive Authority of the Provincial vests with the Governor and is to be exercise by him either directly or through Officers subordinate to him in accordance with the Constitution. Per Article 139(1) all executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor and per Article 139(3) the Governor shall also make the rules for the allocation and transaction of the business of the Provincial Government. Per Article 105(1) subject to the Constitution, the Governor in the performance of his functions shall act in accordance with the advice of the Cabinet or the Chief Minister. Further more, Article 105(5).
Provides that Article 48(2) shall have effect in relation to a Governor as if reference therein to "President" were referred to "Governor". Finally, per Article 48(2) the President (viz. The Governor) shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. A combined reading of the afore-stated provisions of the Constitution would amply demonstrate that the Executive Authority of the Provincial Government vests with the Governor (Article 129), that all executive actions of the Provincial Government shall be expressed to be taken in his name (Article 139) and the Governor is to be act upon the advice of the Chief Minister (Article 105(1) except in such matters in respect of which he is empowered to do so by the Constitution in which even the shall act in his discretion (Article 105(5) read with Article 48(2). As regards the discretion of the Governor it would be seen that in terms of. Rule 5(ii) of the Sindh Government Rules of Business, 1986 which have been made by the orders of the Governor under Article 139(3) of the Constitution, wherein terms of any provision of the Constitution any function is to be performed or any orders have to be issued by the Governor in his discretion, the department concerned shall submit the case to the Governor through the Chief Minister in the form of a self- contained, concise and objective Summary titled as "SUMMARY FCR THE GOVERNOR" stating the relevant facts and points for decision prepared on the same lines as those prescribed in these rules for a summary for the Cabinet except that only one copy will be required which may not be printed. This procedure will not, however, be applicable where the case is intimated by the Governor' himself and decided in consultation wit the Chief Minister. The cases to which this sub- rule applies are enumerated in Schedule-111 which include Item No. 9 and 10 viz. Appointment of Chief Administrator Zakat and appointment of Chairman and Members Zakat Council. Upon a combined reading of the afore-stated provisions of the Constitution as well as the Sindh Government Rules of Business, 1986, we are of the firm opinion that only the Governor has the right and authority to nominate/appoint the Provincial Zakat Council. Upon perusal of the record it transpires that the summary for the formation of a new Zakat Council was prepared by the respondent No. 1/Secretary and submitted for the consideration of the Chief Secretary and thereafter for that of the Chief Minister all of whom approved it based upon which the impugned notification was issued. This summary was never submitted to the Governor as required under the Rules. Hence, in our view such notification did not have the sanction of law or the rules viz. The Constitution of Pakistan, the Zakat and Ushr Ordinance and the Sindh Government, Rules of Business. Consequently, the two, notifications issued by the Government of Sindh on 22.5.2004, withdrawing the earlier notification dated 9.12.2003, whereby the Provincial Zakat Council was established by the Governor and establishing a new Zakat Council respectively were void ab initio and without lawful authority. They are declared to be as such. It follows therefore, that all the subsequent notifications issued by the Government of Sindh at the behest of the Provincial Zakat Council formed on 22.5.2004 are also void ab initio and without lawful authority. This includes the notification dated 25.5.2004 extending the term of the Chairman, District Zakat and Ushr Committees previously existing for another six months as their term had expired on 24.2.2004.
16. We would now revert to the next issue viz. The Constitution of District Zakat and Ushr Committees which per Section 16(1) and (4) of the Ordinance in our opinion is the sole prerogative of the Provincial Zakat Council. This is to be done in two phases first nomination of the Chairman by the Provincial Council and thereafter of the Members by said Council in consultation with the Chairman. Furthermore, the District Zakat and Ushr Committees per Section 16(5) are to be' notified by the Provincial Council itself. Upon a perusal of the record, it is clear that although such nomination had been recommended by the Provincial Council, it was not being notified by the Secretary for 'reasons best known to himself. In this respect, it would be beneficial to reproduce the remarks of the learned Chairman on the note put up by the Secretary to him regarding the nomination of the Chairman District Zakat and Ushr Committees dated 19.5.2004 and recommending that the tenure of the previous Chairman of the Zakat Committees be extended. Quote "It is not the first time that such exercise of nomination of District'
Zakat Chairman is being undertaken by the P.Z.C. The hard reality is that in the last more than one month Minutes of the Meeting of P.Z.C. Held on 24.4.2004 have not been finalized on one or the other pretext despite repeated directions of the undersigned and even typed draft of the Minutes delivered to Mr. Channa. The Commitment made by the Secretary on 18.5.2004 in submission of Minutes of the meeting through special messenger on the next day has also not been honoured. It is clear that the Secretary is entangling the issue of notification regarding the nomination of twelve new District Zakat Chairman in uncalled formalities to justify delay to act at his own whims and to defy my specific directions with some mala fide intention. This is a serious matter, which will be taken up at appropriate level. For the foregoing, I am not inclined to pass any order for release of Zakat Funds under the old set-up. However, the Secretary is directed to take necessary steps by making correspondence with the Chief Secretary/Finance Secretary, Government of Sindh or any other concerned forum, to ensure that the available funds of Zakat do not lapse or refunded to central zakat account, of course in due course of law. In case no immediate steps are taken the Secretary will be personally liable for the consequences", unquote. Consequently, in our opinion, the submission of the Secretary that the Chairman of the District Committees could not be notified due to some procedural hurdles is quite untenable. In view of the afore-stated circumstances, we would thus hold that the nomination of the Chairmen District Zakat Committees by the Provincial Zakat Council was legal and valid and they have so been notified per Notification dated 22.6.2004 attached with the Statement filed by the learned Advocate-General on 23.6.2004.
17. Before parting with this judgment we would also like to record certain findings vis-a-vis the conduct of Mr. Qabool Ahmed Shaikh, Secretary Zakat and Ushr Department, Government of Sindh, in this rather unfortunate and sorry episode. In the first instance, it would be seen that he appears to be functioning in two capacities i.e. Both as a Secretary of the Department as well as the Chief Administrator/Chief Executive of the Provincial Zakat Council which has perhaps led to a conflict of interest, as in the former capacity he is under the general superintendence and control of the Provincial Council and is to perform such functions as are assigned to him by or under the Ordinance in his capacity as Chief Executive of the Council. However, as opposed to this statutory function the Secretary has taken upon himself to move the summary before the Chief Secretary and the Chief Minister recommending the denotification of the Council nominated by the Governor on 9.12.2003 and formation of a fresh Council. To say the least. The contents of this Summary dated 13.5.2004 not only reflect a complete ignorance of the law vis-a-vis nominations of the Provincial Zakat Council but also contain allegations of a perverse nature against the Members of the Council notified on 9.12.2003 to the effect that there were cases of corruption, manipulation and extortion in the Zakat Committees by the Members, which are not borne out from the record. We also note with regret that the proposals regarding reformulation of the Provincial Zakat Council per the said summary were approved post haste on the same day by the Minister of the Department, the Chief Secretary and the Chief Minister. None of these gentlemen even cared to either go through the record or peruse the law in order to satisfy themselves whether the summary was correct and.
Proper. Again the Secretary's summary dated 15.5.2004 recommending certain persons to be the Chairman and members of the new Zakat Council were approved on the same day by these gentlemen. In the circumstances, we are constrained to hold that the conduct of the Secretary was not becoming of his office either as a Secretary to the Provincial Government or Secretary General of the Provincial Zakat Council. He is warned to be more careful regarding the execution of his official duties in future. We have retained a copy of the summary authored by the Secretary dated 13.5.2004 to be a part of the record, as well as that dated 15.5.2004.
18. In the light of the foregoing observations, perhaps the Governor may consider appointing a suitable person as the Chief Administrator of the Provincial Zakat Council in accordance with Section 15 of the Ordinance since in our view merely by virtue of being the Secretary,. Zakat and Ushr Department, such an officer does not automatically become the Chief Administrator. A copy of this order shall be sent to the Governor for his record as well as to the Chief Minister, the Chief Secretary and the Minister for Zakat and Ushr, Government of Sindh for their guidance.