1. In this Constitutional petition, petitioners have made the following prayer:
(a) That this Honourable Court may graciously be pleased to direct the Respondent No,1 to hold the election of Zakat and Ushr Committees in District Khairpur, through legal way in furtherance to declare the selections of Chairman and members of Zakat and Uslu. Committee, Hassan Pato and Mehar Ali Unar.
(b) To direct the respondent No,22 not to release the amount or honour the cheques issued by the Respondents Nos. 4 to 21, who are so-called Chairman and Members of Zakat Committee.
(c) Any other relief/relieves may be awarded which this Honourable Court deems fit and proper.
(d) To award the costs of Petition. The case of the petitioners stated briefly is that they are social workers and are the voters of Zakat and Ushr Electoral Roll. Respondent No,1 has selected respondents Nos. 4 to 21 as Chairman and members of Zakat and Ushr Committee of Hassan Pato and Meher Ali Unar of Taluka Faiz Ganj under the influence of local notables (Waderas) and has thereby violated the provision of Zakat and Ushr Ordinance of 1980 (hereinafter to be called "the Ordinance") as the respondent Nos. 4 to 21 have not been taken up by holding elections. PetitiOners have alleged that respondent No,1, Chairman District Zakat Committee Khairpur is a corrupt officer and he has brought the Chairmen and Members of Zakat Ushr Committees with intention to usurp Zakat fund and deprive the real Mustahkeen (deserving persons) of Zakat and Ushr fund. Respondent No,1 has filed his para wise comments wherein he has denied the above allegations by saying that the same are incorrect and are false. He has stated that members of Local Zakat Committee are not appointed by him but by a team including a Gazetted Officer one Aalim-e- Deen and one member of the District Committee. He has further stated that the said team is constituted by the District Committee under subsection (4) of section 18 of the Ordinance.
2. Respondent No,1 has refuted the allegation of corruption by saying that he is a retired Principal of an Educational Institute (Government Mumtaz College Khairpur) with un-blemished record: has remained as a Member of Syndicate of Shah Abdul Latif 'University for six years: Member of Board of Intermediate and Secondary Education Sukkur for six years and at present also, he is Member of Senate of Shah Abdul Latif University Khairpur. He has termed the allegations of the petitioners as frivolous and defamatory. Respondent No,1 has also challenged this petition on the point of its maintainability. Mr. Shar has, in his arguments, challenged the constitution of the above mentioned two committees on the ground that the said Committees were required to be constituted by way of election within terms of subsection (3) of section 17 of the Ordinance; no assessment of suitability of those appointed as Chairmen/Members was made; and that the Members who have been selected would not disburse the funds of Zakat and Ushr amongst the Mustahkeen (deserving persons). On the other hand Mr. G.D. Shahani learned Addl. A.-G. Has, in his arguments, emphatically denied that section 17 of the Ordinance has anything to do with constitution of local Zakat and Ushr Committee which provision, according to him, relates to constitution of Tehsil, Taluka or sub- Divisional Ushr Committee. He has referred to subsection (4) of section 18 of the Ordinance and has stated that said provision of law governs the constitution of the Local Zakat and Ushr Committee.
3. He has argued that Zakat and Ushr Committees of Hassan Pato and Mehar Ali Unar were constituted in accordance with relevant provision of law, rightly and properly. Respondent No,1 has adopted the above arguments of Mr. Shahani. He has denied the allegations of petitioner and has reiterated what he has stated in his comments. We have given due attention to the arguments of Mr. Ghulam Shabbir Shar learned counsel for the petitioner, Mr. Ghulam Dastagir Shahani, learned Addl. A.-G.. And Mr. Saleem-ul Hague respondent No,1 and with their assistance, we have examined the material made available before us. We have also gone through the relevant provisions of law. Before we touch upon the merits of the case, it will be advantageous to reproduce relevant sections 17 and 18 of the Ordinance, 1980 as follows:-- Section 17 Tehsil, Taluka or Sub-Divisional Zakat and Ushr Committee. (1) to (2)
(3) The Tehsil Committee, Taluka Committee or Sub-Divisional Committee shall consist of the Assistant Commissioner, two women members and six members to be elected, in the prescribed manner, by the Chairman, of the Local Committees of the Tehsil, Taluka or Sub-Division, from amongst themselves: Provided that, if there are more than two Tehsil Committees or Taluka Committees within the jurisdiction of the Assistant Commissioner, he shall be a member of only such of the Committees as the Provincial Council may specify and the Provincial Council may nominate the Tehsildar or Mukhtairkar of the Tehsil or Taluka concerned, as the case may be, to be the member of any other of the said Tehsil Committees or Taluka Committees: Provided further that the two women members shall be nominated by the District Committee in consultation with the Chairman of the Tehsil, Taluka or Sub-divisional Committee concerned and shall not be less than forty-five years of age.
(4) The members of the Committee shall elect one of their member to be the Chairman of the Committee; and, if two or more persons secure an equal number of votes, the result of the election shall be determined by drawing lots.
(5) The Tehsil, Taluka or Sub-divisional Committee so constituted shall be duly notified by the District Committee concerned.
(6) The Chairman and members of a Tehsil Committee, Taluka Committee or Sub-Divisional Committee, not being an ex-officio members, shall hold office for a term of three years and shall be eligible for re-election.
4. (7)
5. (8)
(9) Any vacancy in the office of Chairman or members, other than an ex-officio member, shall be filled by the election, in accordance with subsection (3), or as the case may be, subsection (4), of a person qualified to hold the office.
6. (10)The Chairman or members elected under subsection (9) shall hold office for the un-expired term of his predecessor. Section 18. Local Zakat and Ushr Committee.--(1)
7. (2)
(3) The Local Committee shall consist of nine members, of whom two shall be Muslim women who are not less than forty-five years of age selected by the residents of the locality in the manner specified in subsection (4).
(4) The District Committee shall constitute a team of three or more persons including at least one gazette officer, one Aalim-eDeen and one member of the District Committee to organize a public gathering of the adult Muslims, teachers and Ulema residents of a locality and call upon them to select, in the prescribed manner, seven adult Muslims residing in that locality who possess Secondary School Certificate and are known to be pious and who offer five times prayer daily and have sound moral and financial integrity and not engaged in a political activity: Provided that a person who is a member of a team constituted for the selection of members of a Local Committee shall not be eligible to be a member of such Local Committee, and except in the case of such Local .Committees in the Islamabad Capital Territory as may be notified by the Administrator-General, a person who is a salaried employee of Government or of a local authority otherwise than as Pesh Imam of a local mosque or a teacher of a local school, or of a corporation set-up, owned or controlled by Government, shall not be eligible to be member of a Local Committee: Provided further that, where in a District the number of Local Committee is so large that the members of the District Committee, cannot be put on all the team of constituted for the selection of members of Local Committees in the district, the District Committee, may, at its discretion, nominate any other non-official person of the district to represent it on the said team: Provided further that the team constituted by the District Committee shall organize a separate gathering of the adult Muslim females residents of the locality and call upon them to select, in the prescribed manner, two Muslim women residing in that locality who are known to be pious and who enjoy their trust to be members of the Local Committee.
8. (5)
(6) The Local Committee so constituted shall be duly notified by the District Committee concerned.
9. (7)
(8) The District Committee to which an appeal under subsection (a) is preferred shall decide the appeal within such time as may be prescribed; and'the decision of the District Committee shall be final and shall not be called in question before any Court or other authority.
(9) The Chairman and members of the Local Committee shall hold office for a term of three years and shall be eligible for reelection or re-selection as the case may be: Provided that............................
10. Provided further ...................... Provided also that ...................
11. (10)
12. (11)
(12) Any vacancy in the office of Chairman or member shall be filled by election or selection of a person qualified to hold the office, in accordance with the provisions of subsection (4) or, as the case may be, subsection (7).
(13) The Chairman, or the member elected or selected, as the case may be, under subsection (12), shall hold office for the unexpired term of his predecessor. (Emphasis is by us)
(14) Mr. Shar has, in his arguments, challenged the constitution of the Local Zakat and Ushr Committees Hassan Pato and Mehar Ali Unar on the ground that (1) the said committees were required to be constituted by way of election within terms of subsection (3) of section 17 of. The Ordinance; (2) suitability of the Chairman/Members has not been assessed and that (3) the Chairman and the Members who have been selected shall not disburse the funds and Ushr amongst the Mustahkeen (deserving persons).
13. Regarding first ground taken by Mr. Shar it may be noted that in order to establish his point, he attempted to rely on section 17(3) of the Ordinance, reproduced above. Perusal of section 17 of Ordinance will however, show that this section relates to the constitution of Tehsil, Taluka or Sub- Divisional Zakat and Ushr Committees. Subsection (3) of said section refers to these Committees and provides in clear terms that Tehsil Committee, Taluka Committee and Sub-Divisional Committee shall consist of the Assistant Commissioner, two women members and six members to be elected in the manner, prescribed by the Chairman of the Local Committees Tehsil, Taluka or Sub-Division, from amongst themselves. Nowhere this subsection provides that the terms stated in the said subsection relate to the selection/election of the Local Zakat and Ushr Committee while section 18 of the Ordinance reproduced above relate to constitution of Local Zakat and Ushr Committee. Subsection (3) of said section provides that Local Committee shall consist of nine members, of whom, two shall be Muslim women not less than 45 years of age selected by the residents of the locality in the manner specified in subsection (4) which, envisages that the District Committee shall constitute a team of three or more persons including at least one gazetted officer, one Aalim-e-Deen and one member of the District Committee to organize a public gathering of the adult Muslims, teachers and Ulema residents of a locality and call upon them to select, in that prescribed manner, seven adult Muslims residing in that locality who possess Secondary School Certificate and are known to be pious and who offer five times prayer daily, and have sound moral and financial integrity and not engaged in a political activity: Thus, the study of relevant provision of law clearly reflects that statement of respondent No,1 and the contention of Mr. Shahani are not incorrect. The Chairman and the Members of the Local Zakat and Ushr Committee shall be appointed or to become Chairmen and Members by way of selection. The Chairman and Members of above two committees have, therefore, been rightly appointed by selection. In all nine members of whom two are Muslim women have been selected and the selection has been notified by the impugned notifications dated 9th September, 2004. We are, therefore, clearly of the view that no illegality has taken place in Constitution of the above mentioned two Local Zakat Committees vide notification referred to above.
14. As regards second ground taken by Mr. Shar, that suitability of Chairmen and Members has not been assessed, it may be stated that neither in the pleadings of the petitioners such ground has been made nor any prayer relative to this ground has been made. This is not denied by Mr. Shar, who, rather, admits that parties have not challenged the suitability of the Chairmen and Members of above two Local Ushr and Zakat Committees. Also, in his arguments, he did not point out as to how they were unqualified or for that they were not coming up to the required standard of eligibility so as to be termed unfit for their selection. Be that as it may since no such plea has been taken in the petition, the same cannot be allowed to be taken to the surprise of other party. Regarding third ground taken by Mr. Shar that Chairmen and Members so selected shall not disburse the funds of Zakat and Ushr amongst deserving citizen (Mustahkeen), it may be noted that these are, simply, apprehensions of petitioners at a premature stage. It is well-settled principle of law that merely on the ground of apprehension a Constitutional petition does not lie. Reference may be made to the case of Sikandar Aziz and 20 others v. Secretary Ministry of Industries and Production, Government of Pakistan and 4 others reported in 2001 M LD 210.
15. Beside above, it may be stated that in this petition in para. No,9 of this petition, petitioners have stated that no other efficacious and immediate remedy is available to them. This plea taken by the petitioners does not appear to be correct. Subsections (7) and (8) of section 18, reproduced above, provide a remedy of an appeal. According to subsection (7) of section 18, any adult Muslim resident of a locality who is aggrieved by the conduct or result of the proceedings of the selection of the members, or the election of the Chairman of the Local Committee concerned may prefer an appeal to District Committee. Thus petitioners have a remedy available to them under the relevant statute. Considering the above facts and circumstances, relevant provision of law and the cited case, we are clearly of the view that this petition is not maintainable. It is accordingly dismissed in limine with no order as to cost.