' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeals Nos.1374 of 2003 and 1375 of 2003 (filed by Muhammad Naseem Turyali) and Civil Appeal No,1267 of 2003 (filed by Ghulam Sarwar Khan) as they are directed against the same judgment dated 8-10-2003 Vide which the election of appellant Muhammad Naseem Turyali as member of Provincial Assembly Balochistan (PB_12 Killa Abdullah-II in the General Election held on 10-10-2002) was annulled and a direction was issued to hold fresh polls.
2. Facts in brief are that having secured the highest votes in the afore-referred election appellant Muhammad Naseem Turyali was elected as returned candidate which election was challenged by two candidates i,e, by Ghulam Sarwar Khan who secured the second highest votes and Dr. Wali Jan Kakar, respondents. It was alleged in their election petitions that appellant was in the service of Sui Southern Gas Company (hereinafter referred to as the "Company") at the time of filing nomination papers as also at the time of poll. It was maintained that he was appointed as Management Trainee in the, said Company on 3-10-1995, that his services were terminated on 7-12-1998, that the order of termination was challenged before the Federal Service Tribunal, Islamabad through appeal which was allowed on 13-10-2000, that the Company challenged the judgment of the Service Tribunal before this Court in C.P.No,465 of 2001 which was disposed of on 28-3-2001 and the Company was directed to absorb the appellant on the same lines as had been done in the case of Saleem Mustafa Sheikh, another employee whose services were also terminated. Pursuant to the afore-referred judgments, appellant's services were restored. He remained as regular employee till 9-11-2002 when he resigned. The date for filing nomination papers was from 9-8-2002 to 20-8- 2002 and the polls were held on 10-10-2002 and there was re-polling in 14 polling stations on 18-11- 2002.
3. Both the petitions filed by the respondents were allowed and vide the impugned judgment the appellant has been held to be an employee of the Company which was owned and controlled by the Federal Government and disqualified to contest the election. A direction for fresh polls was also issued as the Tribunal was of the view that the disqualification from which the appellant suffered was not so notorious as to raise a presumption that the same was in the knowledge of the voters of the constituency. Reliance was placed on the law laid down by this Court in PLD 2003 SC 268, PLD 1986 SC 698 and 1975 SCM R 409.
3-A. Learned counsel for the appellant Muhammad Naseem Turyali in support of this appeal has made the following submissions:--
(i) That the appellant was appointed as Management Trainee on 3-10-1995. The letter of appointment itself indicates that it was a temporary assignment for six months and it carried a specific stipulation that the same was being offered without commitment to provide employment in the organization at a latter stage.
(ii) That even the termination order dated 7-12-1998 shows that the assignment was not being extended after the expiry of the period for which the appointment was made.
(iii) That notwithstanding the letter of absorption issued by the Company on the date of filing nomination papers (from 9-8-2002 to 20-8-2002) as also on 10-10-2002 appellant was not in service of the Company.
(iv) That with a view to remove the confusion regarding his service in the Company, appellant sent a formal letter to the Company on 9-11-2002 which was accepted and his services were terminated with effect from 7-12-1998 as per the letter issued by the Company on 25th March, 2003.
4. Learned counsel for Ghulam Sarwar Khan defended the impugned judgment insofar as it annulled the election of appellant Muhammad Naseem Turyali but prayed that there was no justification to direct fresh polls and he (Ghulam Sarwar Khan) having secured the second highest votes deserves to be declared as the returned candidate. He referred to the statement of appellant Muhammad Naseem Turyali to contend that on his own admission the order of termination of his service dated 7-12-1998 was set aside by the Federal Service Tribunal and he was reinstated. The said order was challenged by the Company before this Court but without any success and thereafter, he admits, he resigned on 9-11-2002. Thus on the dates of filing nomination papers and polls he was in service.
5. Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan who appeared on call of the Court to assist made following submissions:--
(i) That Article 63(1)(d) of the Constitution of Islamic Republic of Pakistan is not attracted as the appellant Muhammad Naseem Turyali was not in the service of Pakistan and the relevant provisions are clauses (e) & (k) of said Article. Appellant was in service of a statutory body owned by the Government and, therefore, was disqualified to contest the Elections.
(ii) That order of termination of appellant's services was set aside by Federal Service Tribunal, which order was challenged before this Court and vide judgment dated 28-3-2001 the Company's petition was dismissed, pursuant to which a letter dated 6-4-2001 was issued by the Company whereby in compliance to the judgment of this Court the appellant and other employees similarly placed were absorbed in the Company. Thus at the time of filing nomination papers as also on the election day, the appellant was hit by clauses re) & (k) of Article 63 of the Constitution of Islamic Republic of Pakistan.
(iii) That the disqualification from which the appellant suffered was not generally known at the time of election either to the candidates or to the constituency. It was a controversial issue both of law and fact. Thus there was no element of notoriety about it, which could lead to an inference that those who voted for the appellant had thrown away their votes. In these circumstances he supported the direction of the Tribunal for fresh election.
6. We have heard learned counsel for the parties and Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan and have gone through the impugned judgment as also the evidence led before the Election Tribunal.
7. Learned counsel for the appellant has primarily made his submissions on issue No,2 framed by the Tribunal i,e, "Whether the respondent No,1 was employee of SSGC at the time of filing nomination paper, if so, to what effect?", It was contended firstly that the nature of assignment given to the appellant by the Company indicated that he was not strictly an employee in service but merely a Management Trainee. It was also stressed that in any case his services were terminated, and at the time of filing of nomination papers he was no longer in service. Reference was also made by the learned counsel to Executive Service Rules and the Board meeting of the company (Meeting No,232 held on 25-2-1988) to contend that the trainee Engineers were on contractual assignments, they were not paid salary but a nominal monthly stipend was fixed by the Company.
8. For a better appreciation of the contentions raised, a reference to Article 63(1) clauses (e) & (k) would be in order which reads as under:-- "63. Disqualifications for membership of Majlis-e-Shoora (Parliament).--(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-eShoora (parliament), if
(a) to (d).......................
(e) he is in the service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest; ' or (0 to (j)...........................
(k) he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or"
9. The Expressions "service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest" should not be confused with "Civil Service" or a "Civil Servant". It is not circumscribed by any concept of salary or fee. It connotes any service, post or office in the statutory body regulated by the Rules or Regulations framed by the competent authority. The only rider is that the said statutory body should either be owned or controlled by the Government. It is nobody's case that the Company is not owned and controlled by the Federal Government. Appellant Muhammad Naseem Turyali was appointed as Management Trainee and he was in the service of the Company which was owned by the Federal Government and thus he was squarely hit by Article 63(1)(e) and (k) of the Constitution of Islamic Republic of Pakistan.
10. The argument that at the time of filing nomination papers i,e, 9-8-2002 to 20-8-2002 he was no longer in the service of the Company is belied by the record. Admittedly the termination order of appellant's service dated 7-12-1998 was set aside by Federal Service Tribunal, vide order dated 13- 10-2000. The statement of Bank account of the appellant tendered in evidence before the Election Tribunal shows that he had been receiving salary as well. Appellant Muhammad Naseem Turyali himself placed on record a copy of his resignation dated 9-11-2002 wherein he prayed that his resignation be accepted is indicative of the fact that he was very much in service. Furthermore vide judgment dated 28-3-2001 in the Appeal filed by the Company against the judgment of the Federal Service Tribunal, (reinstating the appellant) this Court while upholding the judgment of the said Tribunal had directed the Company to absorb the appellant. This would further show that he was in the service when nomination papers were filed. An attempt was made to avoid this disqualification by procuring a letter from the Company dated 25th of March, 2003 (Exh.P/10) vide which it was conveyed to the appellant Muhammad Naseem Turyali "On your request dated 25th March, 2003, we hereby confirm that your Training stands terminated with effect from 7-12-1998 and after that SSGCL has no concern with you. This novel approach to give effect to appellant's resignation from a back date cannot be countenanced in law. In the afore-referred circumstances the judgment of the Election Tribunal disqualifying the appellant is unexceptional and nothing has been shown to warrant interference in the findings of fact in this regard.
11. Coming to the question raised by the appellant in Civil Appeal No,1672 of 2003 (Ghulam Sarwar Khan) that since the appellant had been disqualified he being the next candidate who polled second highest votes be declared as successful, we are of the considered view that no evidence was led to show that the disqualification from which appellant Muhammad Naseem Turyali suffered was known to the electorate and even residents did not raise this objection at the time of filing the nomination papers. There is substance in the submission made by learned Attorney General for Pakistan Mr. Makhdoom Ali Khan that the question of appellant's disqualification was a controversial question both of fact and law. When the election of a returned candidate is annulled on account of disqualification the votes cast in his favour could either be treated as thrown away votes or the electorate may be given a fresh choice to elect their representative. The former course can be adopted only when the disqualification of the candidate in question was known to the electorate and they knowingly chose to vote for such a person who was subsequently found disqualified to contest the election. The principle is that, since despite the disqualification being known and notorious the electorate voted in favour of the said candidate, they have thrown away their votes and have no right to seek fresh election. However, if this disqualification was not known to the voters and the question entailed recording of evidence and a judicial pronouncement as in the instant case then the votes cast in favour of such a candidate could not be treated as thrown away votes. In the event of such a disqualification the voters have a right to ask for fresh election.
This is in line with this Court's earlier view as given in the following cases:
(1) Rashid Ahmed v. Barkat Ali (PLD 1968 SC 30);
(2) Muhammad Afzal Khan v. Ch. Manzoor Elahi (PLD 1975 SC 1296);
(3) Saeed Hassan v. Asghar Ali (PLD 1976 SC 6);
(4) Ahmad Saeed v. Election Tribunal (2003 SCM R 1611).
' In the case of Ahmad Saeed v. Election Tribunal (supra) this Court at page 1655 held as under:- "34. The answer to the question "as to whether the votes given to a candidate who was suffering from a disqualification should be treated as being simply wasted or thrown away" the consistent view of this Court is that votes given to the returned candidate without notice of the disqualification which was not notorious cannot be thrown away for the benefit of next candidate at the cost of de- franchising the electors and in such circumstances fresh election is must."
12. For what has been discussed above we see no infirmity or illegality in the impugned judgment to warrant interference. The appeals having no merit are accordingly dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.