Syed Jamshed Ali, J.--The nomination papers of the two appellants for the office of Nazim and Naib Nazim respectively of Union Council No, 86, Lahore were accepted by the Returning Officer vide order dated 30.7.2005. Appeals filed by Respondents Nos, 3 & 4 were dismissed by the learned District Returning Officer vide order dated 3.8.2005. The objection against the candidature of the appellants was that Syed Ishfaq Hussain Shah, Appellant No, 1, having been recalled as Naib Nazim under Section 92 of the Punjab Local Government Ordinance, (No, XIII) 2001 on 31.7.2003 stood disqualified for four years under Section 163 of the aforesaid Ordinance.
2. Respondents Nos, 3 & 4 challenged the orders passed by the Returning Officer and District Returning Officer in Writ Petition No, 14373 of 2005. The objection of Respondents Nos, 3 & 4 was sustained and nomination papers of appellants were rejected. In Civil Appeal No, 976/2005, the facts are identical except that the objector/writ petitioner in the said case was Zahid Mehmood Chaudhiy, Respondent No, 3.
3. Leave was granted by this Court, inter alia, to examine:--
(i) "As to whether in pursuance of Section 163 of the Punjab Local Government Ordinance, 2000 (before amendment) petitioners are eligible to contest the election becalise according to learned counsel they are debarred to contest re-election and not General Elections of Local Councils."
(ii) As to whether despite omitting/repealing the provision of Section 163 of the Punjab Local Government Ordinance, 2001, the petitioner shall remain debarred to contest election on account of the effect of recalling."
4. The learned counsel for the appellants has raised the following contentions:--
(i) That Appellant No, 1 was elected under the Punjab Local Government Election Ordinance, 2000 (No, V of 2000) which did not provide for any provision for recall of a Nazim or Naib Nazim.
Therefore, the notification dated 31.7.2003 of Appellant No, 1 of recall did not render him disqualified.
(ii) That the effect of recall of the Appellant No, 1 was re-election under Section 163 of Ordinance No, XIII of 2001 which only meant bye-election to the office of Naib Nazim and not any fresh election.
(iii) That on the date of the submissions of the nomination papers on 25.7.2005 Section 163 of 'Ordinance No, XIII of 2001 had already been omitted by Punjab Local Government, Amendment Act (No, X of 2005) promulgated on 9.7.2005 and, therefore, appellants could not be disqualified. He maintained that, in fact, Section 4 of the West Pakistan General Clauses Act was not applicable in the facts and circumstances of the case.
5. Mr. Shahzad Shaukat, ASC appearing for the successful writ petitioners, contended that under Section 196 (3), of Ordinance No, XIII of 2001, elections held under Punjab Local Government Election Ordinance, 2000 are deemed to have been held under the Punjab Ordinance, No, XIII of 2001 and, therefore, all the provisions of the later Ordinance being applicable, the recall of the Appellant No, 1 clearly entailed a disqualification for four years. He relied on the reasoning of the learned High Court.
6. We have considered the submissions made by the learned counsel for the parties. The view of the learned High Court was that notwithstanding omission of Section 163, Appellant No, 1, carried with him the disqualification on account of the operation of Section 4 of the West Pakistan General Clauses Act, 1956.
7. We have carefully applied ourselves to the legal issues raised before us. As far as first contention of the learned counsel for the appellants is concerned, it may be noted that by virtue of Section 196(3) of the Punjab Ordinance, No, XIII of 2001, election held under Punjab Ordinance No, V of 2000, shall be deemed to have been held under Ordinance No, XIII of 2001. The relevant provision of the said Ordinance is reproduced herein below for facility of reference.
"Section 196 (3): Not withstanding the repeal of Punjab Local Elections Ordinance, 2000 (V of 2000), all Nazims, Naib Nazims and members of the Local Governments elected under the said Ordinance shall be deemed to have been elected under this Ordinance and shall continue to hold their respective offices till the completion of their terms unless earlier removed, resigned or recalled under this Ordinance."
Therefore, the contention that there was no provision for recall of a Nazim or a Naib' Nazim under the aforesaid Ordinance of 2000 and therefore, Appellant No, 1, did not incur any disqualification under Ordinance No, XIII of 2001 has no force.
8. As far as the second contention is concerned, we are unable to agree that re-election contemplated by Section 163 of Ordinance, No, XIII of 2001, is in fact bye-election for the same office, from which Appellant No, 1 was removed and therefore it will not apply to any future election.
This interpretation can neither be reasonably placed on the aforesaid Section nor it could possibly be the intention of the law maker because in that case the period of four years specified in the said Section would become meaningless. To illustrate, take the case of exit of a Naib Nazim through a recall motion carried about 30 days prior to the completion of the tenure as a Naib Nazim, could it be said that the disqualification will apply only for the purpose of bye-election and will be for a period of one month. Thus, we have no doubt in our mind that the four years disqualifying period started from the notification of the recall as a Nazim or Naib Nazim and a person incurring such a disqualification would not be eligible to contest any election or bye-election provided such a disqualification existed on the statute book on the date of submission of the nomination papers.
8A. The contention that has attracted our attention is as to whether ineligibility of Appellant No, 1 will continue to be attached to him notwithstanding omission of Section 163 from the Punjab Ordinance, 2001 and whether Section 4 of the West Pakistan General Clauses Act, 1956, was applicable. It will be appropriate to reproduce Section 4 of the aforesaid Act.
"4. Effect of appeal. (1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal, shall not:--
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed.
(2) The provisions of sub-section (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor as if it had been repealed by a West Pakistan Aft"
9. A perusal of sub-section (1) shows that the disqualification incurred under the omitted provision will not subsist if the intention of legislature was otherwise. Therefore, to discover the legislative intent, it will be expedient if right to elect or to be elected is first explained. The aforesaid right is creation of the statute i,e, the Punjab Local Government Ordinance, 2001. This is neither rooted in the Constitution nor in the common law. It was so explained in the full bench judgment of the Lahore High Court in Muhammad Rafique vs. Federation of Pakistan etc. (PLJ 2005 Lahore 275). In the present case, the legislature created the right, it abridged in the form of Section 163 and removed the embargo by deleting Section 163. This intention is discoverable by the fact that for future elections, there will not be any such disqualification. Reference to Rule 14 (3) of the Punjab Local Councils Election Rules, 2005 may also not be out of place. It is also reproduced hereunder.
"14(3). The Returning Officer, may either suo moto or upon any objection, conduct such summary enquiry as the may think fit an reject a nomination paper if he is satisfied that--
(i) the candidate is not qualified to be elected as member;
(ii) ................................
(iii)..............................
(iv),............................
10.It shows that the disqualification in presenti (emphasis supplied) entails rejection of nomination papers and, therefore, the question as to whether on the date of scrutiny of nomination papers a candidate was disqualified, will have to be determine only with reference to the provisions of the Punjab Ordinance No, XIII of 2001, the Punjab Local Government Elections Rules, 2005 and reference to any other law and for the matter even to the West Pakistan General Clauses Act will not be relevant.
11.Another aspect of the matter which needs to be noted is that the object of the legislature in providing ineligibility under Section 163 appeared to be temporary, otherwise, the qualifications and disqualifications, which are permanent in nature, have been clubbed together by the legislature in the form of Section 152 of the Ordinance XIII of 2001. A temporary legislature measure does not have the same effect as a permanent one. The omission/deletion of a temporaiy measure does not normally attract the provisions of Section 4 of the West Pakistan General Clauses Act (which is in pari materia with Section 6 of the General Clauses Act). In fact, the Returning Officer and the Appellate Authority, on a simple and straightforward view of the laws in force, held that on the date of the scrutiny of the nomination papers the disqualification was no more on the statute book to be enforced. Another fact to be noted is that if the intention of the legislature was that the disqualification contemplated by Section 163 will be carried by the person, it could have been so indicated while omitting Section 163. We have also kept in mind that the provision of Section 163 being penal in nature has to be construed in favour of a candidate in case of doubt.
12.We will also like to observe that a recall motion betrays lack of confidence of the house expressed through the electorate. After the term of the Local Council comes to an end, the continued disqualification attached to a person would mean that he will not command the confidence of the new house as a result of fresh election. This interpretation, on the face of it, is absurd. In fact, to disqualify such a candidate will amount to even disenfranchising the electorate.
The object of Section 4 of the West Pakistan General Clauses Act was to keep in tact the rights and liabilities accrued under repealed or omitted legislation. In case of an election, no right or liability of an individual is likely to be jeopardized. Keeping in view the relevant considerations, we are of the opinion that the disqualification contemplated by Section 163 of Ordinance XIII of 2001 was temporary in nature and with its omission, Appellant No, 1 did not carry it with him on the date of scrutiny of nomination papers.
13.Before we part with this judgment, we deem it appropriate to examine the judgments relied upon by the learned High Court while setting aside the orders passed by the Returning Officer and the appellate authority. In the case of Saeed Ahmad vs. The State (PLD 1964 SC 266) one Saeed Ahmed was convicted for offering bribe to a Police Officer under Section 165-A of the PPC. During pendency of the appeal before the High Court Section 165-B, was added to the Pakistan Penal Code on 6.6.1962 whereby a person giving bribe was exempted from the operation of Section 165-A under certain circumstances. The convict sought protection of the aforesaid section. The plea was repelled. In Dr. Mukhtar Hamid Shah and others vs. Government of the Punjab and others (PLD 2002 SC 757), tax was levied on the hospitals under Sections 8 and 9 of the Punjab Finance Act, 1996 w,e,f, 1.7.96. The aforesaid sections were deleted by the Punjab Finance Ordinance, 2000. The prayer before the High Court and this Court was that because the aforesaid provisions were deleted it was not a case of repeal to attract the provisions of West Pakistan General Clauses Act and therefore from 1997 upto 2000, no tax being payable, it was required to be refunded. The plea was repelled and it was held that "repeal" and "deletion" carry the same meaning. In the case Province of East Pakistan vs. Sharafatullah and 87 others (PLD 1970 \ SC 514), the controversy was as to the date of assessm ent of compensation for the property requisitioned under East Bengal (Emergency)
Requisition of Property Act (XIII), 1948. None of the judgments aforesaid relates to the controversy in respect of an electoral right. It is reiterated that a general statement of law is not the exposition of the whole law on the subject. Role of a precedent was explained by this Court in Trustees of the Port of Karachi vs. Muhammad Saleem (1994 SCMR 2213) by relying upon the following passage: "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found (Quinn v. Leathern (1901) AC 495, 506)."
14.Accordingly, both these appeals are allowed, the impugned judgments of the High Court are set aside. The learned Chief Election Commissioner will take necessary steps for holding fresh elections to the offices of the Nazim and Naib Nazim of Union Council No, 86.
(Rao Farid-ul-Haque Khan) 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.